Macfarlane v Johnston and Others
| Jurisdiction | Scotland |
| Judgment Date | 11 June 1864 |
| Date | 11 June 1864 |
| Docket Number | No. 211 |
| Court | Court of Session (Inner House - Second Division) |
Sheriff of Lanarkshire. I.
Bill of Exchange—Stamp.—
Process—Productions.—
IN December 1861, the pursuer, Macfarlane, as trustee on the sequestrated estates of the Clyde Galvanizing Company, and Robert M'Gavin and William Murray Thomson, the individual partners of said company, raised an action in the Sheriff-court of Lanarkshire against William Johnston, metal-merchant in Glasgow, and William Teacher, merchant in Glasgow, and William Johnston, merchant in Biggar, his cautioners, concluding for payment of certain instalments of a composition of 6s. per pound, agreed to be paid by the said William Johnston, whose estates had been sequestrated on 11th March 1861, and who had been discharged upon 19th June 1861, upon his offer to pay said composition upon all debts due by him at the date of his sequestration.
The pursuer averred;—That on 13th October 1858, the defender Johnston sold to the Clyde Galvanizing Company 14 tons 10 cwt, of spelter, at the price of L.835, 5s., to be delivered by the end of December then following. Of same date the said company granted their acceptance at four months for L.300 to account of the price. When the bill became due it was retired, partly by a payment in cash and partly by two acceptances of L.130 each, which were also retired at maturity. The spelter, however, was not delivered, and the sum sued for is the composition of 6s. per pound effeiring to the principal sum of L.300 and interest.
The defenders, on the other hand, averred;—That the Clyde Galvanizing Company had stopped payment in 1857, at which time the defender Johnston was their creditor to the extent of L.3369, 4s, 10d.; and that he, along with the other creditors of the company, had accepted a composition of 12s. 6d. per pound. That in September or October 1858 the said defender had ascertained that the company were paying their creditors the balance of their debts, being 7s. 6d. per pound, and he applied to them to be put upon the same footing. That the Clyde Galvanizing Company admitted that they had paid some of their creditors the amount beyond the 12s. 6d. per pound; and that by letter dated 22d October 1858, they agreed to pay him L.300, by three equal instalments, in part liquidation of said difference between 12s. 6d. and 20s. per pound of the amount of said debt of L.3369, 4s. 10d. The letter was in the following terms:—‘Glasgow, 22 Octr. 1858. Mr William Johnston, 49 Mitchell Street. Dear Sir,—We agree to pay you, during February 1859, L.100, during March 1859, L.100, during April 1859, L.100, in part liquidation of our debt to you of deficiency of 7s. 6d. per pound, as per our settlement in December 1857; and we are, dear Sir, yours very truly,’ (Signed) ‘Clyde Galvanizing Co., per W. M. THOMSON.’ The letter was not stamped.
It was further averred;—(Stat. 7.) ‘When the said Clyde...
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