Jay & Co. v
Paton.

July 31, 1907.

LANARKSHIRE. had paid up some £12, but, owing to family trouble, he fell in arrear. It does not appear, however, that the pursuers have exercised their right to regard him as in breach of the Sheriff FYFE. agreement and elected to retake possession of the furniture, part of which Gorey still holds. They are at present concerning themselves only with six of the articles, which Gorey in February, 1907, sold to the defender for £4. Of this portion the pursuers seek delivery under sec. 2 of the Small Debt Amendment Act, 1889.

The law is now quite clearly established that part payment has no effect in passing any portion of the property. So long as any part of the £31 7s. remained unpaid, the pursuers, as in a question with Gorey, retained the character of owner of each and all the articles. The sale to the defender, therefore, was invalid, as Gorey had no title to sell.

But it does not necessarily follow that the pursuers have a title to bring a direct action for delivery against third parties. It is open to question whether their right to retake possession, which is a right arising upon contract, should not be operated through the other contracting party. Personally I have always had the gravest doubt as to whether sec. 2 of the 1889 Act was ever intended to be available to a person in the pursuers' position, whose hirer has become in breach of his agreement, and who requires to work out a contract remedy. I think it is stretching the meaning of "owner" in this section very far to hold that it includes a contractor who has, under a special contract reserving right to retake the articles, put such articles into the hands of another person. But it appears that a practice has grown up in the Small Debt Court of recognising a direct claim for delivery by such a contractor against a party other than his own contractor, and I do not care to disturb a practice which is certainly convenient, and so, for the purposes of this case, I shall assume that, in the statutory sense, the pursuers are in law still the "owners" of each and all of the articles enumerated in the inventory attached to the hire-purchase agreement.

But to enable the pursuers to take advantage of the 1889 Act, not only must they be the owners, but the articles of which delivery is sought must not exceed £12 in value. Ostensibly their value is £19 4s. 6d., for that is the pursuers' own declared value in the agreement. But it is said that that figure was for new goods, and that these are now secondhand, and it is urged that the second-hand market value is the criterion under sec. 2 of the 1889 Act. In the present case, as it happens, there is no evidence at all of present value in the second-hand market, except the pursuers' own

Jay & Co. v
Paton.

July 31, 1907.

Sheriff FYPE.

statement that it is under £12. Nor is the £4 which the LANARKSHIRE. defender paid for the articles any guide. They were sold by Gorey under pressure of domestic worry, and, I imagine, in the knowledge that he had no right to sell them. He had to take what he could get. They were bought by a broker to sell again, and I suspect the broker must have had in view that the seller might turn out to have no title to sell. A price fixed in these circumstances is no criterion of value. But, even if it had been proved that the value of these six articles as second-hand furniture is under £12, I do not know that it follows that this action is competent, for I think "value" in sec. 2 of the Act means value to the pursuer, and to the present pursuers the price they might bring at a sale of second-hand articles is not the measure of value. Their contract right is not to sell the articles in the secondhand market and claim damages, but to resume possession of the property, and in that view the only fixed fact as to value which I have to go upon is the pursuers' own declared value, which in the agreement was the value upon which the hirer might keep the articles, and also the value upon which the owner might take them back. T. A. F.

For pursuers-Mr. GILBERT GUNN, Glasgow.

For defender-Mr. FRANCIS MACDONALD, Glasgow.

SHERIFF COURT OF PERTHSHIRE. Appeal of HAY & Co., LTD., in DAVID CROMB'S

Sequestration.

No. 97. PERTHSHIRE.

Cromb's

Evidence-Writ-Docquet in claimant's books-Limits Sequestration.
of correction.-A farmer dealing with live-stock
salesmen signed a docquet on his account in their
books, bearing that he had examined the account
and found it correct, and stating a balance as then
owing by him. Two years later he became bank-
rupt, and the salesmen lodged for ranking on his
sequestrated estate a claim beginning with the said
balance. The trustee in the sequestration rejected
the claim, on the ground that the docquet was no
voucher. Held that the docquet was a voucher
effectual (no fraud in it being alleged) to fix the
amount due by the bankrupt to the creditor at its
date, subject only to this, that, if error, capable of
being pointed out in the account itself, exists in
arriving at it, the docquet is not conclusive.
Bankruptcy-Sequestration-Voucher-Cheque.-Held,
in a question of ranking in a sequestration, that in
an account between auctioneers and a farmer, with
receipts and disbursements on either side, cheques
for payments by the auctioneers to the farmer were
sufficient vouchers.

Hay & Co., Ltd., live-stock salesmen, Perth, lodged a claim for ranking on the sequestrated estate of David

Cromb's Sequestration.

PERTHSHIRE. Cromb, farmer, Bush Farm, Balbeggie, Perthshire. Their statement of debt began with-" Balance due by the said David Cromb to Hay & Co., auctioneers and live-stock salesmen, Perth, at 18th May, 1903, as per docquet signed by him in their books as follows:Perth, 18th May, 1903.-Having examined the foregoing accounts, I find the same correct, the balance due by me being £159 14s. 4d. sterling.-David Cromb. W. Allan, witness; James Reid, witness." Then followed a statement of receipts and disbursements hinc inde, including payments by the auctioneers to the farmer, for which the only vouchers were cheques drawn by them in favour of, and endorsed by, him. The trustee (Mr. G. N. Gray, solicitor, Perth) rejected the claim as unvouched. The claimants appealed against his deliverance to the Sheriff-Substitute (SYM), who pronounced as follows:

March 14, 1907.
Sheriff SYM.

PERTH, 14th March, 1907.-The Sheriff-Substitute, having anew considered the appeal and relative documents, finds that the docquet which is brought forward as sufficient to vouch the first item of debit against the bankrupt is effectual (no fraud in it being alleged) to fix the amount due by the bankrupt to the creditor at its date, subject only to this, that, if error capable of being pointed out in the account itself exists in arriving at it, the docquet is not conclusive; finds that the trustee is still entitled to see the said account leading up to the docquet, in order to examine whether there be such error therein; allows the parties a proof of their respective averments in article 4 of the minute for the appellants, and in No. 4 of the trustee's answer thereto; appoints the cause to be enrolled, that a diet of proof may be assigned; directs the appellants to lead in the proof.

JOHN DAVID SYM.

Note. The Sheriff-Substitute is unable to distinguish this appeal from the appeal of Mr. Davidson in Robertson's Sequestration in respect of the argument about the docquet. He pronounced an interlocutor dated 22nd June, 1906, in that appeal, and he refers to the note thereto, and especially the passage beginning on page 17 of the print in the appeal, which was produced. That interlocutor was appealed to the Bill Chamber, and was affirmed on 21st August, 1906. reclaiming note was lodged, but the Sheriff-Substitute has been informed that that note has now been taken out of Court, and that the judgment of the Lord Ordinary on the Bills affirming his own is now final. The Sheriff-Substitute has now resumed consideration of this appeal, and, seeing that there was a change of agency in consequence of the

A

Cromb's Sequestration.

lamented death of Mr. Davidson, he readily agreed to the PERTHSHIRE request of Mr. Stewart, the new agent, to hear him upon the appeal, all the more that it stood over for some time while March 14, 1907. proceedings in Robertson's case were pending in the Bill Chamber.

Mr. Stewart did not advert to the attack on the validity of the docquet which is to be found on the marginal addition to article 3 of the trustee's answers, but he took up anew the argument that the trustee, being entitled under the Bankruptcy Act to see the account and vouchers, was entitled to see the account before the docquet. So he is. He is entitled to see it for the limited purpose allowed in the interlocutor. But he is not entitled to say, "The account is a voucher, and I may therefore examine it as a voucher just as if there was no docquet." On the whole, although the docquet is said to shroud some items of interest which could not be allowed, it is thought that Mr. Stewart did not succeed in effectually distinguishing this case from that of Robertson.

It is quite true that the case of Haldane v Speirs, 10 M. 537, "determines conclusively that a loan of money is not proved by a cheque, and the indorsation of the alleged borrower on the back of it is simply an acknowledgment that he has received the contents." The cheque in this state just proves the receipt of money, not an advance. But it is also true "that when you come to an account current between factor and principal or between agent and client, with receipts and disbursements hinc inde, what you have got to do is to establish the receipt of money and the payment of money-the very thing which a cheque is most fitted to do. It is not a contract of loan there, not the constitution of the relation of borrower and lender, but the vouching items of payment on the one side and receipt on the other" (Robb, 11 R. 881; Lord Young). The SheriffSubstitute thinks that this is all that need be said on the question as to eight cheques brought forward by the appellants as supporting items in their account. They were factors doing business for the bankrupt as principal.

There being a sharp difference in fact between the parties on the matters set forth in article 4 and answer 4, the appellants expressed their entire readiness to establish the truth of their averments. It is perhaps safe and right that proof should therefore be allowed. J. D. S.

The trustee appealed to the Court of Session, but on 11th June, 1907, the Second Division affirmed the Sheriff-Substitute's judgment, with expenses. There

Sheriff SYM.

Sequestration.

PERTHSHIRE. upon the creditors, at a special general meeting, reCromb's solved that all opposition to the claim should be withdrawn, and directed the trustee to act accordingly, which he did.

No. 98.

PERTHSHIRE.

Miller v Pearl Life Assurance Co., Limited.

For Hay & Co., Limited-Messrs. M'CASH & HUNTER, Perth.
For Mr. Gray (Cromb's trustee)-Mr. JOHN A. STEWART,
Perth.

MARY M'GREGOR or MILLER, Pursuer; THE PEARL LIFE
ASSURANCE COMPANY, LIMITED, Defenders.
Insurance-Life insurance-Insurable interest-Mar-
ried daughter insuring her father-14 Geo. III.
cap. 48.-Question whether by Scots law a daughter
(with a husband alive) has an insurable interest in
her father's life, he not being debtor to her by
marriage contract or other special obligation.
Insurance Life insurance-Representation Warranty
of assured person's health.-A daughter effected
an insurance on her father's life, and in the
proposal by her stated that he was in good health
and not afflicted by disease. The policy declared
the proposal to be the agreed basis of the contract
and stipulated that the policy should be void "if it be
discovered that at the date of this policy the assured
was afflicted with any mental or bodily disease,"
or if any untrue averment be contained in " the
proposal. Held that the statements in the proposal
constituted a warranty entering into the contract,
it being immaterial what was the actual state of
knowledge of the party making them, and that, as
the life assured was in fact afflicted with serious
bodily disease at the date of the policy, action on
the policy could not be maintained.
Insurance-Life insurance-Overstatement of age-
Claim for addition to sum assured proportionate
to excess of premium paid.-A daughter insuring
her father's life overstated his age by three years.
On his death she sued upon the policy, not only for
payment of the sum assured, but for an addition
corresponding to the sum which should have been
assured by the higher premium. Held that, stand-
ing the contract, the claim was untenable.

Mrs. Mary M'Gregor or Miller, wife of James Miller, mason, 10 Dollerie Terrace, Crieff, sued, with his concurrence, the Pearl Life Assurance Company, Limited, for payment of (1) £17 8s., being the sum assured on the life of the pursuer's father (Duncan M'Gregor) in a policy issued by the defenders to the pursuer,' and (2) £3, being the difference between the sum assured and the sum which should have been assured for the same premium on the life of a person aged sixty-two,