Scottish Court of Session Decisions

In November, 1824, Sir James Stewart Denham, of Coltness, entered into a contract with James Bennet, carpenter at Rosebank, and William Cadzou and John Burns of East Machan, as Bennet's cautioners. Bennet bound himself to execute the whole carpenter, plumber, and slater work, upon a certain farm-steading, on or before the 1st of May, 1825, “the whole work to be furnished to the satisfaction of Robert Davidson, carpenter, Coltness, hereby named as inspector of the work, for the sum of £338, 16s. sterling, to be paid in four instalments, according as the work goes on; it being always understood that the value of work equal to one instalment of the money remains unpaid, until the whole work now offered for is completed, and taken off our hands by the inspector.”

Bennet made a sub-contract with Duncan Wright, slater in Hamilton, who bound himself to execute the slater work on or before the 15th of May, 1825, “the whole to be executed in a substantial and workmanlike manner;” and in case of any difference as to the execution of the work, it was to be submitted to the inspection “of two proper skilled tradesmen, one to be chosen by each party.” Sir James Denham was no party to this sub-contract.

In April 1825, Sir James had made advances to Bennet, amounting to £174, 4s. Bennet's work was not nearly completed by 1st May, in terms of his contract with Sir James, and in June he became insolvent, and was said to have effected a private arrangement with his creditors. On the 24th of that month, Davidson, the inspector, examined the work done by Bennet, and reported, that he “considered the whole of the slating insufficient.” Cadzou, one of the cautioners for Bennet's due performance of his contract, became bankrupt; and Burns, the other cautioner, granted a letter to Sir James, along with one Wilson, on 21st September 1825, by which they bound themselves “to see the work engaged for by James Bennet, to be done at the farm-steading here, all sufficiently finished to the satisfaction of Mr Robert Davidson, and that before the 11th day of November next.”

Burns had, previously to this, been executing part of the work undertaken by Bennet, and, upon a joint receipt from Bennet, Burns, and Cadzou, Sir James, on 23d September, made an additional payment of £79, 18s., so that, with the previous payments, his advances were equal to three-fourths of the price contracted to Bennet. This sum was more than enough to pay all the work done by Bennet, before Burns took it up and carried it on.

Burns did not complete the work within the specified time, and in February 1826, Davidson again reported that part of the work, including the slating, was insufficient. In the following month of March, Duncan Wright, who had raised an action against Bennet, his own employer, for the slater-work done by him, used arrestments, on the dependence, in the hands of Sir James, as indebted to Bennet. In his action against Bennet, Wright proved that he had executed his slate-work in a sufficient manner, and he obtained decree. In the mean time, Burns went on with certain farther operations towards completing the work originally undertaken by Bennet, and, in June, Sir James made a payment to him of £30, to account of these operations. Sir James finally employed workmen of his own to complete the work, and, after paying them, a balance of £19, 17s. 3d. remained in his hands, of the original contract price with Bennet. He raised a multiplepoinding before the Sheriff of Lanarkshire, calling Bennet, Burns, and Wright, to dispute their preferences. In bringing out this balance, Sir James took credit for the £30 paid to Burns in June 1826, to which Wright objected that it was a breach of his arrestment, and he raised a forthcoming against Sir James, which was conjoined with the multiplepoinding. The Sheriff found Sir James entitled to take credit for the £30, and to his expenses, which left only a balance of £5, 0s. 3d. in his hands, of the fund in medio. To this balance Wright was found entitled.

Wright thereupon raised a reduction of the Sheriff's decree against Sir James and Burns, in which a preliminary defence was repelled on 20th November, 1832. ¹ The ground of reduction was, that, as Sir James had, after the arrestment, paid £30 to Burns of the contract-price, which was truly a fund belonging to Bennet, whether the contract was performed by Bennet or his cautioners, this was in breach of the arrestment, and, therefore, Sir James was liable to make it forthcoming to the pursuer. Sir James might be entitled to pay such workmen as he himself employed to complete the work; but he was not entitled to pay Burns, who, as cautioner, was liable to complete the contract under an obligation anterior to the insolvency of Bennet, and who, on completing it, must just claim against Bennet for the amount, as he had not attached any of Bennet's funds by diligence.

Sir James answered, that he was no party to Bennet's sub-contract with Wright, and was only bound by his own contract with Bennet, under which, the whole work was to be completed on, or before, 1st May, 1825, and it was to be done to the satisfaction of Davidson. Neither of these conditions was implemented; and, on 23d September, 1825, Bennet had received payment of all the work he had done. Bennet executed no work afterwards, but his cautioner Burns, being liable for damages, though not for specific implement, had carried on the work to a certain extent, under the same condition—that it should be done to Davidson's satisfaction. For this work he had paid the £30 to account in June, 1826, and this could be no breach of Wright's arrestments, because, in March 1826, when these arrestments were used, Sir James was not indebted at all to Bennet, and had no funds of Bennet in his hands. It was truly in virtue of a new agreement that any sum be-