LANARKSHIRE. at Glasgow, and the circumstances are fully set forth Glasgow Fish Co. in the opinion of the Sheriff-Substitute (MONCRIEFF), South-Western which was as follows: v Glasgow and Railway Co. May 4, 1907, In this action the pursuers, who are wholesale fish dealers in Glasgow, claim damages, restricted to £12, in respect of delay in transit over the defenders' line of railway between Fairlie and Glasgow of 128 boxes of fish consigned by the pursuers for carriage on 25th September, 1906. The fish was brought to Fairlie pier by a steamer owned by the pursuers, and was landed about 5.30 a.m. It was loaded upon one of the defenders' trains by 6.30 a.m., and this train left Fairlie station at 7 o'clock. In ordinary course the fish would have reached St. Enoch in eighty minutes, but on this occasion the transit occupied four hours. In the event of the defenders being liable in reparation in respect of this delay, I hold it proved that the delay in transit was the direct cause of loss of market to the whole of the fish consigned, and of resulting damages to the pursuers which amount in cumulo to more than the sum sued for. Any claim of damages competent to the pursuers is, of course, founded upon contract. In this view it was plausibly argued for the defenders that the pursuers' statement of claim is misleading and defective, in respect that it is not in terms founded on breach of contract, but merely concludes for damages sustained through the wilful misconduct of the defenders or their servants, whereby said consignment was greatly delayed in transit." I have, however, no difficulty in holding that the claim is in competent form to allow of the issue of contract being determined. There is specific averment only of wilful misconduct in delaying a train, and there is no express mention of contract or of breach thereof. But the sole relation between the parties was in respect of a contract of carriage; such a contract is produced, and was founded on by the defenders as the foundation of their counter claim; and the effect, in my view, of the form of words in which the claim is stated is merely to give notice of the particular breach of contract which is to be made the ground of action. In determining whether or not there is liability, I have therefore to consider two main questions of fact, (1) what was the contract between the parties? and (2) what was the cause of the delay to the train? As might be anticipated from the way in which the claim is stated for the pursuers, the goods were accepted for carriage by the defenders under special written contract, which was framed in terms of their regular "risk" note. Glasgow and Railway Co. May 4, 1907. By this contract the pursuers, in consideration of a reduced LANARKSHIRE. rate of carriage, agreed over a sixpenny stamp to relieve Glasgow Fish Co. the railway company from all liability for loss, delay, or South-Western detention except upon proof that such loss, delay, or detention arose from wilful misconduct on the part of the company's servants. The defenders will therefore be free from liability unless the three hours' detention of the train was occasioned by any such wilful misconduct. It appears that the delay arose in this way. Fish trucks were required at Ardrossan, and word was sent to Glasgow to that effect. Glasgow replied, "Apply Fairlie." Upon the authority of this reply a telegram was sent from Ardrossan to Fairlie asking that trucks be sent by "first means." It was admitted on behalf of the defenders that this telegram, although in general terms, authorised the officials at Fairlie to attach trucks for Ardrossan to the train by which the pursuers had consigned their fish, and justified them in sending that train round by Ardrossan instead of to Glasgow direct. Although the time spent at Ardrossan was only twenty minutes, I hold it proved that but for this deviation the train from Fairlie would have arrived in Glasgow by shortly after 8 o'clock. A train from Ardrossan, known as Reid's special, arrived that morning at St. Enoch about 8.30 a.m., and the Fairlie train would have been in front of Reid's train had it been allowed to proceed direct to Glasgow. The twenty minutes spent at Ardrossan caused the Fairlie train to be caught in a block at Paisley, which, like Reid's train, it would otherwise have escaped. The deviation is therefore responsible for the delay. Was there, then, wilful misconduct upon the part of the railway company's servants in ordering that the Fairlie train be sent round by Ardrossan? If the contract between the parties had been wholly contained in the writing to which I have already referred, I should unhesitatingly answer no. But the pursuers have satisfied me that the running of this Fairlie train was regulated by a special contract, independent of that contained in the "risk" note, which special contract they, along with other traders, have a title to enforce. That such a contract existed in favour of certain other consigners of fish is beyond dispute. It has been proved that an arrangement was entered into some eight years ago between the railway company and a certain association of fish merchants whereby the company undertook to run a train from Fairlie to Glasgow, starting as soon after 7 a.m. as fish more or less in quantity should be offered for carriage. The train was to be a fish special, and while no schedule of time was fixed or published, it Sheriff MONCRIEFF. LANARKSHIRE. was expressly agreed that the train should run to Glasgow Glasgow Fish Co. South-Western Railway Co. May 4, 1907. Sheriff MONCRIEFF. Glasgow and direct, and should be timed to catch the market, which opens from 8 to 8.30 a.m., and has passed its height within an hour and a half. From that date onwards the train has regularly run to Glasgow direct, nor has any other instance of deviation been proved by the defenders. The pursuers, however, were not parties to this arrangement, and as they have not yet become members of the association, it is more than doubtful whether they have a jus quæsitum to enforce it. But this fish train appears to have been available for, and to have been regularly taken advantage of by, traders other than members of the association, and by the pursuers in particular. The pursuers before they became regular consigners at Fairlie have proved that they had verbal notice from a servant of the defenders of the terms of agreement with the association as to the running of the train, and only consigned fish upon the understanding that those terms were to be observed. As no solemnities are required or observed in constituting an agreement of this nature between a carrier and a consigner, I hold that the pursuers by that evidence further proved that the company entered into a special supplementary contract with them personally as to the running of this train, to the effect that it should run upon the same terms as those arranged with the association. I accept the evidence as to the terms of arrangement with the association only as affording a more determinate example of the agreements which the defenders concluded with traders as to the running of this train. I hold that the pursuers have proved a separate agreement embodying the terms that this Fairlie train should run to Glasgow without deviation. In these circumstances the standard of conduct due to the pursuers on the part of the company's servants becomes much more exacting. It may well be argued that no misconduct is involved in delay or detention arising even from the inconsiderate administration of the resources of a railway company, where there is no contract between the parties other than that embodied in the published time-tables; and yet similar acts on the part of the railway servants may unquestionably amount to misconduct if performed in breach of an express obligation. I accept the definition of misconduct which is put forward in the authorities which were cited, and recognise that a deliberate act directed to cause injury must probably be proved. But in the circumstances I hold that the order issued under which the train was sent round by Ardrossan amounted to such an act, and I therefore sustain the pursuers' claim for the full amount of damages sued for. Glasgow and Railway Co. May 4, 1907. A counter claim has, however, been put in by the defenders LANARKSHIRE. for £5 13s. 5d. in respect of the freight due for carriage of Glasgow Fish Co. the fish. There was no dispute as to the amount of this South-Western charge, and although it was stated at the bar that the defenders had agreed to renounce their claim for freight, this was not established by evidence. The counter claim will therefore also be sustained, and decree pronounced in favour of the pursuers for the amount of the balance of claim over counter claim, viz., £6 6s. 7d. For pursuers-Mr. JOHN R. RENWICK (Messrs. LOWNDES & For defenders-Mr. JOHN HUNTER HAMILTON, Glasgow. The SHERIFF COURT OF BANFFSHIRE. JOHN MILLER and WILLIAM FALCONER, Appellants; JOHN SMITH (James Michie's Trustee), Respondent. Bankruptcy-Preference-Privilege of farm servant's wages—Arrears—Sequestration-Preferential Payments in Bankruptcy Act, 1888-Application to Scotland. A farmer left his farm at Whitsunday without paying his servants' wages. The servants raised actions for payment a month later. farmer's estates were sequestrated on 8th August following. The servants claimed preferences for wages up to the Whitsunday preceding the sequestration. The trustee rejected the claims to a preference, but allowed ordinary rankings. on appeal, that the wages claimed were not "< current wages, and that as at common law only "current wages were entitled to a preference, the appellants could not claim more than ordinary rankings. Opinion also that the Preferential Payments in Bankruptcy Act, 1888, did not apply to Scotland. Held, The judgment of the Sheriff-Substitute (REID) is contained in the following interlocutor and note, which it was agreed should be held as the judgment in both BANFF, 18th May, 1907.-Having resumed consideration of the note of appeal, refuses the appeal; sustains the deliverance of the trustee; finds the appellant liable in expenses; modifies the same to the sum of 10s. 6d., for which decerns against the said appellant for payment to the trustee. John Smith, Caledonian Bank, Garmouth. JAMES REID. Note. In this case the appellant, a farm servant, left the service of his master at Whitsunday, 1906, without getting payment of his wages, and the master was sequestrated on 8th August of that year. The trustee has allowed the servant an Sheriff MONCRIEFF. No. 67. Miller, &c. v May 18, 1907. Sheriff REID. Miller, &c. v May 8, 1907. BANFFSHIRE. ordinary ranking for the amount of his wages, but he claims a preferable ranking. It is conceded on behalf of the trustee that wages, limited to a year for the term current in which sequestration takes place, are preferable, but it is contended that wages due prior to the term of Whitsunday, when the appellant left his master's service, are not preferable, but are in the position of arrears, and only entitled to an ordinary ranking. The rule of law is well established, both by the institutional writers and decisions, that the wages of a farm servant for the term current at the master's bankruptcy are preferable over other debts. It appears to me that wages cannot be regarded as current" after the servant has left the master's employment. In this case the master was not sequestrated until August, and he might have engaged other servants after Whitsunday for the succeeding term, whose claims for wages would have been undoubtedly preferable. If the wages for the previous term are also to be held preferable, then a preference would be given for two terms; and if for two terms, why not for any number more, and for the whole unpaid wages, no matter when they fell due? But, according to the decisions, such claims have been limited to a year, and all arrears are refused. But if one term only is to be allowed, then if the previous term is to be preferable, the current term must be held to be not preferable—which is contrary to the decisions, that the wages must be "current at the term of bankruptcy." Melvil v Barclay, 23rd January, 1779, tionary, 11853, and others to this effect. seem to be any equity in holding that a servant who has left the struggling master is entitled to a privilege which is denied to the servant who sticks to his master till his sequestration, and presumably helps him to prevent, or at least postpone, it. I can understand the rule of law which gives a preference to a servant for his wages for the term current, but which at the same time refuses to extend that privilege at the expense of the general body of creditors to all unpaid wages-it might be for several terms. In the case of Watt and Others v Mackie's Trustee, 1885, 1 Sh.Ct. Rep. 219, Sheriff Dove Wilson, in practically similar circumstances to the present, held that a servant's wages were preferable, being of opinion that the term bankruptcy was to be construed as referring to insolvency (which presumably occurred prior to the term of the servant's leaving at Whitsunday), and not to the date of sequestration, which was in August, after the servant left. The case which he assumes of a servant not being entitled to claim payment of his wages before the term day, and the master being made See the case of |