claim, these claims stand in the same position. To the technical objection referred to, the Sheriff-Substitute has not given effect. The identity of the dates in the mandate and affidavit of the claimant is to be taken as a mere clerical error; and the mandate may, it is thought, be viewed in the same position as if it simply omitted to set forth the day of the month on which it was granted-an omission which, on the authority of the case of Cooper, March 10, 1847 (referred to in Murdoch & Barclay's Manual of the Bankrupt Law, p. 47), is not a fatal objection. In regard to the objections common to the three claims now in question, the Sheriff Substitute has repelled them as insufficient. The fact that none of these claimants are conjunct or confident with the bankrupt, places them in a favourable position, and though the documents on which they found their claims may have originally been granted by the bankrupt, and even shortly before his bankruptcy, to conjunct and confident persons, it is not to be presumed against the other parties who have, ex facie, come honestly into possession of the documents, that they are other than bona fide holders, and entitled to claim the advantages which, ex facie, these documents confer upon their possessors. The objection which is taken to the claims in question, on the ground of the claimants not having valued the obligations of the parties, other than the bankrupt, whose names appear on the several bills founded on, and of not having declared that these parties are not liable in relief to the bankrupt, has also been repelled. The bankrupt, it is to be observed, is the acceptor in all of these bills. The other parties are, therefore, not to be pre sumed liable to him in relief, and the claimants are thus not required under the statute to make any such valuation or statement as in the objections is alleged to be requisite. As the claims which now have been sustained give a majority of valid votes in favour of Mr Belfrage, even on the supposition of all the votes tendered for his competitor, Mr Carter, being also valid, the Sheriff Substitute has thought it unnecessary to give any findings in regard to the note of objections which Mr Belfrage has lodged against the votes given in favour of his opponent. For Belfrage-CRAWFORD & CRAWFORD, S.S.C. 8TH OCTOBER, 1862. SHERIFF COURT, DUNBLANE. (MR SHERIFF GRAHAME.) THE TRUSTEE IN MICHAEL DODD'S SEQUESTRATION, PETITIONER. Bankruptcy-Appeal-Process.-Held, incompetent to demand a scrutiny by the Sheriff of the votes given in support of a resolution of creditors, except under an appeal in terms of sec. 169 of the Bankruptcy (Scotland) Act, 1856; and that a caveat was not a form by which, under the statute, such a resolution could be brought under review. Ar the first statutory meeting of the creditors on the sequestration of Michael Dodd, Dunblane, a majority in number and value voted for a renewal of the bankrupt's personal protection. The trustee, after the expiry of the time allowed for an appeal, presented the usual petition, but in consequence of a caveat having been put up by one of the creditors, the Sheriff appointed parties to be heard. For the bankrupt it was maintained that the duties of the trustee and Sheriff were purely ministerial-that, under sec. 77 of the Bankrupt Act, the trustee was, if instructed, bound to ask, and the Sheriff bound to grant, a renewal of protection. It was further contended that the trustee was not entitled, at this stage, to adjudicate upon the votes, but must take them as they appeared, and that the only competent mode of objection to any vote was by appeal. For the creditor it was maintained that the Sheriff was not entitled to grant the renewal of protection, unless satisfied that a majority, both in num ber and value, of real creditors had voted for the protection. The objecting creditor moved the Sheriff to give effect to certain objections to creditors who voted for the renewal of protection that had been sustained in the competition for the office of trustee. Sheriff Grahame pronounced the following Interlocu tor: Having under the preceding Interlocutor, heard Mr Millar S.S.C. for himself, and Mr Crawford S.S.C. for the trustee in the sequestration; grants the bankrupt, Michael Dodd, renewal of his personal protection, in terms of the statute, a craved in the note by the trustee. NOTE. No appeal has been taken from the resolution of th creditors at their meeting, of date 16th August, 1862, in favou of the renewal of the bankrupt's personal protection, and th Sheriff-Substitute does not think that, in the absence of a the validity of the votes then given by the creditors: Ti appeal, it is open to him now to enter into any question as t 169th section of the Bankruptcy (Scotland) Act, 1856, appoin the method by which the opinion of the court may be take upon that question; and the creditor now objecting, not ha ing availed himself of the method therein pointed out, t Sheriff Substitute considers that he has no alternative but give effect to the resolution which the majority of the credito came to at their said meeting. The expedient of lodging caveat, which has been resorted to by the objecting cre in the present instance, does not appear to be a formal effectual method for bringing under review any objectio however valid, to the resolution of the creditors. The 16 section of the statute, points out the proper method of cedure, which is by entering an appeal, and not by lodging ANDERSON and ROBERTSON v. SCOTTISH NORTH EASTERN RAILWAY COMPANY. Railway Act.—The Company not bound to erect gar shut across the Railway at a level crossing of a p carriage road, but bound to provide a gatekeeper. A PETITION was presented to the Sheriff of Perthshi the instance of two persons designing themselves ho holders in the district, founding on the Railway Cla Act, to compel the North-Eastern Railway Compar 1st. To erect a gate where there was said to be a c ing of the rail, by a public carriage road, and to b formed as when cattle or horses were driven across railway, it should be shut in on both sides the rails; and Having heard parties' procurators and made avizandum with the cause, Finds, first, That it is now admitted that the pursters are two householders within the parish or district where the crossing in question is situated; second, Finds that it is proved that the defenders' railway at said place crosses a public carriage road or highway; third, That the defenders have failed, in compliance with the 40th and 54th sections of the Railway Lasses Act, to erect sufficient gates across such road on each e of the railway, of such dimensions and so constructed as when closed to fence in the railway and prevent cattle or horses passing along the road from entering upon the railway, ner Lave the defenders employed persons to open and shut gates: Therefore, decerns against the defenders in terms of the prayer of the petition; the said clauses and this decree to be implimented within one month from the date of judgment becoming final, reserving the question of ex during the passage across the railway, for the time opens the road and shuts and fences the railway. section expressly provides for a gatekeeper, the 54th section As to the remedy, there is no doubt that whilst the 40th does not expressly mention that personage. But it is clear that the latter section has reference to a number of preceding sec tions, and repeats them under some general and leading term. A gate implies a gatekeeper, just as much as a mill would be very profitless without a miller, or, still more applicable, a tollgate would be of no service to the revenue of the road without a tollkeeper to levy tolls. If the defenders erect the sta tutory gate, they will find it necessary for their own interest and safety to have a gatekeeper. A long and learned argument was raised on the power of the Court to supplement any omission as to the gatekeeper in the 54th section by its common law jurisdiction, and thus enforce the 40th section, and several decisions were quoted on each side. In the view the Sheriff-Substitute takes, this question does not arise, as he holds the whole requirements of the 40th section to be included in the executorials of the 54th. But if it were otherwise, he is of opinion that where the law has willed the end, it must be held to will the means, and that the jurisdiction of the judge ordinary is ample enough to give the remedy. Where an offence is created by statute, it does not follow that the law cannot be vindicated because of au omission in the machinery for its enforcement. The defenders' procurator insisted that the penalty as to gatekeepers is to be found in the 40th and not the 54th section. But it is clear that the former applies to the personal offence of the gatekeeper when appointed, and must of necessity be suspended until such functionary has been appointed. It may be that the penalty, and especially its application in the 54th section, refers more to the construction of the gate than its keeper. Nevertheless, the opening and shutting the gates is work done, and so important, that there would be little benefit, but rather detriment, by the erection of gates without guardianship; and the mulct of five pounds each day would be amply sufficient to pay a host of gatekeepers where one would be sufficient. NOTE-That the road which crosses the defenders' line of is a public highway or carriage road is beyond all controny. It appears as a road in the accurate and ancient ty map of Stobbie. It is so admitted in the defenders' pated plan and book of reference, and in the proceedings the deed of submission to settle the compensation for and taken. The decreet arbitral dividing the Muir of Largowrie does not identify this road as a peat or private rad. But apart from all written evidence, and the absence al averment of private interest in the road, the proof of use The Sheriff having heard parties' procurators on the defenbeyond cavil. The defenders' solicitor argued that there ders' appeal, and made avizandum with and considered the we only one witness whose evidence went back the full pre-process before finally disposing of said appeal, appoints ptive period of forty years, and therefore the proof was not parties' procurators to attend him at the next sittings, in Lent. But the issue is not the property in the solum of order to discuss the points noted below. the road, but its existence. The defenders do not claim the r's of the road, and have no title to call for a prescriptive Soficient that it was a public highway and carriage road at the time the defenders interfered with it. At all eventa, and in any view, seven years' actual use would be sufft to preserve the road intact, and to give the public its t until regularly evicted by declarator at the instance of e persons having title to dispute its legal existence. The chief point raised by the defenders, and argued with at ingenuity, is that on a critical reading of the 40th clause have complied with the statute. They maintained that that was necessary was that the gates be sufficient to shut the adjacent fields on each side, and that there exists no sion for their wings being stretched across the railway. it is quite impossible to discover the distinction in the marate between a level crossing connecting fields or private ads, where the use of such crossings are of rare occurrence, that of a public carriage road where the passages may be rected to be more or less frequent. There would be no pos ty, without such extension of the gates across the railway, * protecting the railway from the inroad of cattle and horses -ing the line of rails to the right or left, and the use of Apekeeper would in no case be essential, because the gates ang outward from the railway might easily be left to the Ars of the person in charge of the animals passing. The te criticism of the clause resolves it into absolute nonIt confounds "shut" and "open," "railway" and "the ," and makes the cattle alike to pass through with gates ant as well as open. It is perfectly obvious in a fair reading ✓ the clause (rather on the canon of common sense, however, an of grammatical construction), that the meaning of the case is to require gates which, when there is no call for a pamage over the railway, encloses the fields on each side, but On an appeal, the Sheriff pronounced the following Interlocutor: NOTE. The Sheriff concurs in the first and second findings of the Interlocutor appealed from, but he is at present unable to concur in the first part of the third finding, relating to the construction of the gate as opening out from the railway, and not in and towards the line of the railway. The SheriffSubstitute has, however, signified so strong an opinion on the point that the Sheriff fears that he misapprehends the proper reading of the 40th section of the Railway Clauses Act and the arguments of the petitioners, and he therefore wishes the point to be argued. The Sheriff takes this course, more particularly as it appears to him that his judgment in this matter, under the 150th section, will be final, and not subject to correction. The Sheriff also wishes the parties to direct their attention to the question, whether the application, in so far as regards the gatekeeper, is statutory or at common law. After a farther hearing, the Sheriff pronounced the following Interlocutor: The Sheriff having heard parties' procurators on the defenders' appeal, in terms of the last appointment, and made avizandum with and considered the proof and whole process, affirms the first and second findings of the Interlocutor appealed from: Recals the third finding, and the decerniture following the same, and to that extent sustains said appeal: Finds that the defenders have not failed to comply with the 40th section of the Railway Clauses (Scotland) 1845 Act, in so far as regards the erection of sufficient gates, in terms of said section, across the said public road, on each side of the railway, where the said road communicates therewith: But finds that the defenders have failed to employ a proper person or persons to open and shut said gate, and cause the same to be closed as soon as carts, horses, etc., shall have passed through the same; Therefore decerns, in terms of the prayer of the petition, to the extent and effect of ordering, decerning, and ordaining the defenders to employ a proper person to open and shut said gates, and to keep the same continually closed against said road, on both sides of the railway, except during the time when horses, cattle, carts, or carriages passing along the same shall have to cross such railway, and decerns, quoad ultra: Refuses the prayer of the petition, reserving to the petitioners and all others interested all claims competent to them against the defenders or others for penalties, etc., and to the defenders their objections thereto, and appoints parties' procurators to be heard on the question of expenses. NOTE. The Sheriff sees no ground for doubting that the road in question, although not a turnpike or statute labour road, is a public road for carts, etc., and that therefore the 40th section of the Railway Clauses Act applies to it, in so far as it relates to gates at level crossings. It is not easy to understand how the defenders can raise any question as to the road being public after the manner in which they dealt with the road in their book of reference, and in the submission with Baroness Keith. The defenders do not even yet allege that the road is a private road, the property of any individual. They have settled with the Baroness Keith, through whose property the road runs upon the footing, that she had no right to the road other than belongs to all the public, and there is clear proof that the road has been used by the public. may appear hard to the Railway Company to appoint a gate keeper at such a place; but if there must be a gate at the level crossing there must be a gatekeeper to take charge of it. Some arrangement may perhaps be made with the consent cl the Justices, by which the road may be diverted in a con venient manner so as to avoid the expense of a gatekeeper, i such diversion of the road will be a saving to the Railwaj Company. After a hearing before the Substitute, the Railway Con pany were found liable in expenses, subject to modification. NOTE. It is understood that the opinion and practice e civil engineers have been hitherto in favour of the view take by the Sheriff-Substitute, otherwise there is no distinctio between ordinary fencing of the field and the exception fencing of the railway during passages on level crossings public roads. Alt. GLASSFORD. Act. FINDLAY. (MR SHERIFF BELL.) ALEXANDER M'GILL and ELIZA AGNES CUNNING The Sheriff cannot read the 40th section as giving any direc tions in regard to the construction of such gates across public roads, other than that they shall be good and sufficient gates across such road on each side of the railway where the same shall communicate therewith, and that the gates shall be of such dimensions, and so constructed, as when closed to fence in the railway, and prevent cattle when passing along the Carrier-Freight.-Goods were shipped at Glasgow road from entering upon the said railway. None of these provisions require that the gate shall open to or across the railway; the only other provision is, that the gates shall be kept carefully closed across such roads on both sides of the railway, except during the time when horses, cattle, carts, or carriages, passing along the same shall have to cross such railway. The gates during the above exceptional period must be opened, but there is no provision for the gates opening to or across the railway, instead of from the railway and to the road. There is indeed a provision that the Board of Trade, if they deem it to be for the public safety, may direct that the gates shall be kept closed across the railway, but no such direction has been given in the present case. It is really a matter of little importance in itself whether the gates shall open to or from the railway, if the Railway Companies are obliged to appoint a gatekeeper to attend to the opening and closing of the gates. The Sheriff concurs with the Sheriff-Substitute, that under the 40th section the defenders are bound to employ proper persons to open and shut the gates; a gatekeeper is a necessary and statutory adjunct of the gate, and it cannot be held that the provisions of the 40th section have been com. plied with until a gatekeeper has been employed by the Railway Company; if a gatekeeper was appointed, then he would be liable in the penalty of 40s for any default in his duty. It is thought that the Sheriff has jurisdiction to enforce the observance of the provisions of the 40th section. Even apart from the 54th section, the Sheriff appears to be entrusted especially with the duty of enforcing the penalty of the provisions of the statute generally. The 54th section gives the Sheriff right to compel the Company (on their failure to make such gates as "they are hereinbefore required to make,") on the application of certain parties specified in this section, to order the Company to make such gates, and, as it appears to the Sheriff, to order them in terms of the 40th section to employ a gatekeeper. The 54th section, it is thought, was framed more for the purpose of pointing out who are the proper parties to raise a prosecution against the Railway Company on this ground, than for the purpose of giving the Sheriff jurisdiction, which it is thought he had apart from the 54th section. The Sheriff therefore thinks, that in pronouncing the present Interlocutor, he does so in the exercise of his statutory jurisdiction; but even if he had no exclusive statutory jurisdiction, he considers that he has jurisdiction at common law. The road is one which is probably not often used, and it Singapore. On arrival there, and no consignee appo ing, an advertisement was inserted in a newspa announcing that, unless he appeared within seven d. the cargo would be sold to pay freight and expen That period having expired and no one appearing, cargo was sold through the ship's agent, without judi authority-that being alleged to be the custom at Si pore. The price obtained for the cargo having been than the freight and expenses, the shipowners raised action against the shippers for the deficiency.—IIe the Sheriff-Substitute, and acquiesced in-(1) That pursuers had failed to prove that it was the custo the port of Singapore to sell cargo without jul authority, for freight and expenses, failing the app ance of a consignee; (2) At common law, a shipme has no authority, after arrival at his port of destina to sell at his own hands any part of his cargo for he has granted bills of lading; and (3) The master acted ultra vires in disposing of the cargo. The d were therefore sustained, and the defenders assoil:i THE action was raised for payment of £235 23 61 amount of freight alleged to be due by the defer upon thirty barrels of Roman cement, and 1400 fin pipes, shipped by the defenders, through their age Glasgow, on board the ship "Borneo" of Greenoc which the pursuers were owners, and conveyed in s by the pursuers to Singapore under bills of la dated 14th October, 1859, under deduction of £1 9d, being the realised proceeds of the foresaid ship which, upon the consignee at Singapore not being covered or disclosing himself, the pursuers, through agents at Singapore, after public advertisement, according to the practice in such cases observe Singapore, sold for behoof of whom it might con and applied to the liquidation, pro tanto, of the fr leaving a balance of freight due and resting owing to general rule, when the consigner or shipper is the owner of the pursuers of £78 1s 8d. The defence was as follows: (1) That the summons was irrelevant; (2) A denial of the averments in the summons, and of liability for the sum sued for, and explained that the goods mentioned in the summons were at and prior to the date on which they were put on board the "Borneo," and so ecntinued till the date of the sale mentioned in the immons, the property of the consignee named in the Els of lading, viz., H. Somerset Mackenzie, residing at Eastbourne Terrace, London, who, at the date of the hipments, was domiciled there, or, at all events, in Great Britain; that the ownership of the goods was, at the date of the said shipment, known to the owners of the vessel or their agents; that the said II. Somerset Mackenzie is still resident in this country; that the pursuers never intimated to the defenders that they held them Habe for the freight; that if it was the intention of the shipowners to look to the defenders for payment of the sad freight, they should have given, prior to selling the ck, timeous notice to that effect to the defenders, that they might protect their own interests; and that the goods were sold unlawfully and recklessly, and witht judicial authority, and at prices much below what y cost in this country. The record was then closed. Thereafter, parties' procurators having been heard, Le Sheriff-Substitute pronounced the following Inter butor: Having heard parties' procurators, and reviewed the prorepels the preliminary defence that the summons is ir erant, in so far as prejudicial, reserving it in as far as it affects Le merits, and, before further answer, allows the pursuers a pro ut de jure of their averments regarding the circumces under which the goods in question were sold at Singate, and, in particular, of the averment that they were so according to the practice in such cases observed at Singaand allows the defenders a conjunct probation; and in ect that the pursuers state that they will require a comto Singapore for the above proof, before granting said on, appoints the pursuers to lodge a list of interrogain six days, and the defenders a list of cross-interrowithin six days thereafter. The proof allowed by the preceding Interlocutor ang been led, a farther proof was allowed by the wing judgment: Having heard parties' procurators, and reviewed the whole Finds that it is necessary, before disposing of the - the proof formerly allowed to the pursuers, to allow defenders a proof of their averments that at, and prior to take on which the goods were put on board the "Borneo," ey were the property of the consignee H. Somerset Macthen domiciled at Singapore, who was liable, under le of lading, to pay the freight; that the ownership conunchanged up to the date of the sale at Singapore; and id ownership was known at the date of the shipment to ners of the vessel or their agents: Allows said defenders accordingly, and to the pursuers a conjunct probation: diligence against witnesses and havers, and appoints se to be enrolled in the diet roll of the Sth proximo to diet of proof. -The Sheriff-Substitute has given this case a great * of consideration, as it involves some very important quesin Mercantile Law; and he is satisfied that an exhaustive nt cannot be pronounced in it till the above matters of ascertained. Their importance, without in any way ing the case in other respects, will be seen from the aig passage from Chitty's Law of Carriers:—“As a goods shipped under a bill of lading, by which the goods are deliverable to the order of the consigner, or to a named consignee or assigns, he or they paying the freight, the consigner is liable to the carrier for the freight, either by virtue of an express promise to that effect, or from his legal liability as the known owner of the goods; but if the goods be shipped for and on account of the consignee, who is the owner of the goods, then the consigner would not be liable for the freight." After a hearing, the Sheriff-Substitute pronounced the following Interlocutor, which has been acquiesced in:— 66 tion of the proof, productions, and whole process, Finds that Having heard parties' procurators, and resumed considerathe bills of lading instruct that the clay water pipes, mentioned in the summons, were shipped at Glasgow in October, 1859, Murray, agent for Ferguson, Miller & Co. of Glasgow" (the on board the pursuers' ship Menam,' by "Alexander defenders): Finds that the condition of the said shipment was that the goods should be delivered at the port of Singapore, to H. Somerset Mackenzie, Bengal Civil Service, or to his for: Finds that, on the arrival of the said ship at Singapore, assigns, the said consignee paying the stipulated freight thereit was discovered that the said consignee was no longer there, and no holder of bills of lading appeared to receive the said the master of the "Menam" caused to be inserted in the Singa goods and pay the freight: Finds that, in these circumstances, pore Daily Times newspaper the advertisement, of which No. 5/12 is a copy, announcing that unless the holder of the bill of lading took delivery of the goods within seven days, they would be sold to meet freight and expenses, and no holder having appeared, they were sold accordingly by public auction, and the net proceeds of sale, as instructed by the copy account sales 5/1 and 5/2, were £89 10s less than the freight due the "Menam," now sue the defenders as the shippers: Finds on said goods, for which balance the pursuers, as owners of that the pursuers having averred that the master, in selling the goods, acted "according to the practice in such cases observed at Singapore," a proof of said averment was, before farther answer, allowed them by the Interlocutor of 25th January, 1861, and a commission was afterwards granted to take said proof at Singapore: Finds that four witnesses were examined by the pursuers, each of whom has deponed that he considered the course followed by the master of the Menam to be in conformity with the practice observed at Singapore in such cases; but the said witnesses have only been able to refer to two, or, at the most, three instances of a similar character in which such course was followed prior to the date of the sale in question: Finds, therefore, that the proof is not sufficient to establish a continuous and invariable custom of trade at the port of Singapore: Finds that the pursuers have neither averred nor attempted to prove that the defenders were aware of the alleged practice of Singapore, or that they transacted, on the footing of such practice, entering into the contract in shipping the goods: Finds that the said goods were sold without any previous intimation being made to the defenders of an intention to sell, and without obtaining any judicial authority or warrant, and it is no part of the pursuers' allegation that the master was at the time short of funds for ships' purposes: Finds that, at common law, a shipmaster, after his ship has arrived at the port of destination, has no authority to sell at his own hands, and without judicial sanction, any part of his cargo for which he has granted bills of lading; and although this may have been occasionally done at Singapore, no such established and acknowledged custom of trade has been shown to exist at that port as to take it out of the general rule, or to entitle a shipmaster to do there what he would not be entitled to do elsewhere, the more especially if failing delivery being taken by the consignee or his assign, the present case, it was averred by the defenders that the pursuers owners have recourse against the shippers: Finds that, in the knew before the goods were shipped that they were the property of the consignee Mackenzie, and also that they were shipped for and on his account, and the defenders therefore maintained, in point of law, that the pursuers had no recourse for arrears of freight against them, the defenders, both in respect of the manner in which the master had dealt with the goods, and of its being known to the pursuers that they (the defenders) had no interest in the goods from the moment they were put on board ship: But finds that the proof adduced on this special point under the Interlocutor of 11th March does not instruct that the defenders so distinctly warned the pursuers that they were acting merely as agents for Mackenzie in arranging for freight, and taking the bills of lading in the form they did, as to liberate said defenders from the general rule, that failing the consignee, the consigner is liable to the carrier for the freight: Finds, therefore, that the defenders' non-liability rests on the irregularity of the shipmaster's conduct, and his failure either to store the goods till said defenders had been communicated with, or to bring them back to this country: Therefore, and under reference to the annexed Note, Finds that the defenders, not having had the option afforded them of realising the goods in their own way, and the sale, as conducted, having been ultra vires of the master, the pursuers have no claim against the defenders for the deficiency of freight arising under said sale: Sustains the defences, and assoilzies the defenders: Finds the pursuers liable in expenses: Allows an account thereof to be given in, and remits the same to the auditor to tax and report, and decerns. NOTE. It has long been authoritatively settled, that, in all ordinary circumstances, a shipmaster has no right, after arriving at the port of destination, to sell the cargo at his own hand to pay freight. The law looks with extreme jealousy on the master interfering in any way with the cargo. Under the pressure of imminent danger, he may throw part of it overboard to preserve the ship and the residue. And when the owners credit and property have failed in some intermediate port into which he has been driven, to yield the necessary supplies to navigate the ship and bring her home, the Court of Admiralty has sanctioned the sale of a part of the cargo, upon proof of the necessity of such a step. But there is no instance of any such sale being considered competent at the master's own hand at the port of destination, and without any averment that there was a failure of the requisite supplies. If the consignee fails to take delivery, the cargo should either be stored until the shippers are communicated with, or it should be brought home again, under reservation of a claim of damages against the consignee, if he be the owner, and all concerned. See upon this subject, M'Lachlan on Shipping, pp. 142 and 397; and Abbot, 10th Ed., p. 274; also Bell's Com., vol. 1, p. 536. Delivery is an implied term of the carrier's contract at common law, and, in the words of M'Lachlan, the most recent writer on the subject,—“It may be laid down as the general rule, that where there is no delivery made, there is no freight due, whatever claim may be for damages," the only exception being, "where under an emergency goods have been necessarily sold to bring the vessel home." It was at one time held, that where, by the bill of lading, goods were made deliverable to the consignee or his assigns, "he or they paying freight," the owners had no recourse for freight against the shippers. This however is now altered, or at least greatly restricted, the shipper or consigner being exempt from responsibility, only when the owners agree to take the goods "for, and on account of the consignee," knowing him to be the owner. See M'Lachlan, p. 425; Bell's Com., vol. 1, p. 567; and Chitty on Carriers p. 207. The decision of this point against the defenders is favourable to them, in as far as it affects the other portions of the case, seeing that there was less justification for the course adopted by the master, as both consigners and consignee remained liable for freight. The pursuers endeavoured to get over the weakness of their case at common law by founding on the alleged custom of trade at Singapore. But, in the first place, they failed to prove a special custom so uniform and notorious at that port as amounting to what the law regards as usage of trade; and in the second place, where only a local usage is relied on, it is quite settled that it must be known to both parties to be binding on them. But the pursuers led no evidence in contradiction of the defenders' averment that they did not know of the local usage in question; so that, even if it had been given effect to, it is against the defenders (see Bell's Principle, secs. 101 and 524; and Smith, 24th November, 1859) Finally, the sale was gone into without judicial authority. On finding that the goods were not claimed, the master's first duty was to bond and store them. "The master," says Chitty, p. 179, "is not bound to keep the goods on board his ship for an indefinite period, but after waiting a reasonable time without any person having produced a bill of lading, may deliver the goods to some person to keep until the bill of lading is produced (see also Bell's Com., Voi. I., p. 588). Having done this, if the freight is not forthcoming, and if it be impos ROBERT M'COWAN and ROBERT CRAIG, Competing f Trusteeship in Sequestration of JAMES CAIRNS & So Bankruptcy - Trusteeship-Competition for-Clai connection of-Stamping Voucher-16 and 17 Vi cap. 52, sec. 7.-—A claim was lodged in a sequestrati vouched by a document which required to be stamp and on which a vote was given in the competition the trusteeship. The vote was objected to, as not p perly vouched.-Held, that it was competent to sist p cess to allow voucher to be stamped; and docum having been thereafter stamped, claim and vote ther held good. THE following objections were given in for Mr M'Cow 1. Vote of Marland & Whitcomb, warehousem Manchester, for £105 2s 7d. The bills or acceptances for £34 5s 0d and £328 78 mentioned in the account annexed to the affidavit, b not been produced, and the debt is consequently sufficiently vouched. 2. Vote of Henry Robinson, of Huddersfield, for Ss 6d. The details of the goods furnished are not gi and accounts and vouchers sufficient to prove the have not been produced. 3. Vote of Littles, Cousins & Leach, manufactu Leeds, for £99. The bill founded on in the account referred to in affidavit, and annexed thereto, has not been produce 4. Vote of Brunt, Fyrmey & Ridvat, silk mant turers, Leeds, for £65 11s 6d. Accounts and vouchers to prove the debt have been produced. 5. Vote of Wilson & Armstrong, manufactu Hawick, for £138 3s 5d. The bill referred to in the account annexed to affidavit has not been produced. Those lodged for Mr Craig were: Objections to the two claims of James Cairns, & 1. The claimant is father of, and conjunct and dent with, the bankrupt. 2. The bills or promissory notes produced wer may have been, granted after, or on the eve of insolv or bankruptcy, and are not in the circumstances suff vouchers of debt. |