body of the heritors a seat in any part of the church, after division his right becomes defined and limited to a claim against an individual heritor for a seat in that portion of the area which has been allocated to that heritor. It may be gathered from Lord Craigie's judgment in Gavin v. Trinity House of Leith, 2nd June 1825, F.C., that if a heritor's portion of the area is fully occupied, and a parishioner resident on his lands cannot be given a sitting, the other heritors may be called upon to provide him room out of their surplus accommodation. But even in that case the heritor's clear inability to give him a sitting is a condition-precedent to his claiming a sitting elsewhere. In this case the defender is not in such a position. He admits that there are sittings allocated to the heritor on whose lands he is resident which are occupied by strangers, and which could be made available for him, and that being so, I am of opinion that the only seat in this church to which he has any right is the seat which his heritor may set aside for him out of that portion of the area of the church which has been allocated to the lands on which he is resident.

"I am further of opinion that the defender having a seat thus available for him has no interest in the use which may be made by other heritors of the seats allocated to them, but I may add that I agree with the Sheriff-Substitute that the passages which he quotes seem to me to establish the legality of the pursuer's action in granting, in the circumstances, the use of the pew in question to Mr Sanders.

"While I have come to the conclusion that the defender is wrong in his claim, I have some difficulty in following the SheriffSubstitute in granting interdict in the terms craved. The pursuer is entitled to protection from interference in her occupation by herself, or others having her authority, of the sittings allocated to her, so long as the defender can be provided with sittings by his own heritor, but circumstances might change, and the seats allocated to the lands of Shaw might become insufficient to accommodate all the parishioners there resident. While I do not say that in such circumstances the defender would have a right to select a seat for himself, I think the interdict should be so framed as not to prevent any -claim he may then be advised to make.”

The defender appealed.

Argued for the defender and appellantThe heritors to whom the seats in a church were allocated were not proprietors of the seats, and had not the rights of proprietors in the seats, but were merely trustees for the whole parishioners-Earl of Marchmont v. Earl of Home (Eccles. Case), December 17, 1776, M. 7924 (sub. voce Kirk, No. 14): 2 Hailes' Dec. 734; 7 Fac. Dec. 336. A heritor could not shut up a seat or let a seat for hire; his right was merely a right of administration on behalf of the parishioners --Skirving & Young v. Vernon, June 21, 1796, Morr. Dict. 7930; Gavin v. Trinity House of Leith, F.C., June 2, 1825; Duke of Roxburghe (Jedburgh case), June

1, 1876, 3 R. 728, per the Lord President at p. 734. 13 S.L.R. 498; Mackay v. Wood, November 7, 1889, 17 R. 38, 27 S.L.R. 43. There was a certain order of preference in the claims to seats among the parishioners, the tenants and dependants of a heritor on particular lands having a claim to the seats allocated to the heritor in respect of such land. But after the claims of these preferred persons were met, the whole parishioners, the examinable persons in the parish, had a right to the seats in a parish church-Minister of the Parish of Tingwall v. The Heritors, June 22, 1787, M. 7928; Ersk. ii. 6, 11. The parishioners were entitled to attend the parish church, and in so far they were exclusively interested in and attached to that church (per Lord President in Duke of Roxburghe, supra). The defender was here really asserting a right of property in pew No. 19-an exclusive right to the pew not only for herself or her tenants and dependants but for any stranger to whom she might give permission to occupy it, for Mr Sanders, though a heritor, was outside the class of persons for whom the pursuer held the seat in trust. The pursuer had no title to bring this interdict, the effect of which would be to eject the defender and his family from the seat, to make room for any licensee whom the pursuer might choose. The pursuer did not set up any right to occupy the seat in question as against the pursuer or her tenants or dependants. All the defender claimed was a right after the pursuer and her tenants and dependants were accommodated. The interdict granted by the Sheriff was clearly incompetent. The defender was interdicted from occupying 7 feet 11 inches of the pew. It was unworkable, as no one could tell which portion of the pew was subject to interdict and which was not.

Argued for the pursuer and respondentThe defender had no right whatever to sit in the part of the church which was allocated to the pursuer-Stiven v. Heritors of Kirriemuir, November 14, 1878, 6 R. 174, 16 S. L.R. 100. A heritor had certain recognised rights in seats allocated to him, if they were not occupied by him or his tenants and dependants - Duncan's Parochial Law, 2nd ed. p. 222, et seq.; Black's Parochial Law, p. 91; Mackintosh v. Fraser, February 8, 1825, 3 S. 508. These rights had been recognised by the Lord President in Duke of Roxburghe (supra), and in Stephen v. Anderson, November 18, 1887, 15 Ř. 72, 25 S. L.R. 70; and Edinburgh Ecclesiastical Commissioners v. Kirk Session of High Kirk (St Giles case), July 18, 1888, 15 R. 952, per Lord Young at p. 961, 25 S. L.R. 684. The pursuer admittedly could not let the seat for hire, but she could delegate her right to sit there, or in other words, she could confer on anyone as a favour the right to sit in that seat which was not needed by her tenants and dependants. It was a widespread custom for heritors to grant such a right in seats which had been allocated to them. This right might be subject to the claim of the parishioners, including the defender, to a seat in the church, but

June 11, 1903. J the defender could find ample accommodation in other seats in the church, and there was no averment that there was not room for him and his family in the seats allocated to the lands of Shaw, on which lands he was employed. If the defender or any other parishioner insisted on going out of the seats so provided for him, he was in no better position than a stranger. It was only when a parishioner could not find room in his own area that he had a preference over a stranger. Mr Sanders, too, being a heritor and an elder was not in the position of a stranger. He was within the definition of "parishioner." The right of a heritor in the seat allocated to him was more than the right of a trustee. The fabric of the church belonged to the heritors; it was a part and pertinent of their estates. A heritor's right to his seats was really a right of property, with a burden affecting it to the effect that he must provide sittings for his tenants and dependants, and possibly after them for any parishioner who could not be otherwise provided for. That obligation being performed, the right of administering the seats allocated to him rested solely with the heritor, and a licensee of a heritor was entitled to occupy the seat in preference to any parishioner, provided the parishioner had (as was the case here) a seat allocated to him in another part of the church. The defender by insisting in occupying this seat No. 19 was, accordingly, infringing the right of the pursuer, and interdict should be granted. If the interdict granted by the Sheriff was not in proper terms, it was competent and proper to protect the pursuer's right from infringement by the defender by granting interdict in slightly altered terms within the scope of the prayer of the petition.

LORD ADAM-This is an action at the instance of Mrs Peebles, who, as proprietrix of the lands of Hazelberry, is a heritor in the parish of Tundergarth, against Charles Jardine, who is a ploughman on the farm of Shaw and is résident in the parish of Tundergarth. Mrs Peebles is not herself resident in the parish, but as proprietor of lands in the parish certain sittings were allocated to her use--the whole of the pew No. 29, and 7 ft. 11 inch. in pew No. 19, and 1 ft. in pew No. 9. No question is raised as to her right in pew No. 29, which is her family pew. The question is as to her right in pew No. 19. The question arises in this way-This particular pew has been allocated to one of her farmers, a Mr Beattie. Mr Beattie and his family do not attend the Parish Church. The result is that those 7 ft. 11 inches in pew No. 19 are not required and are not occupied by herself. In these circumstances Mrs Peebles claims the right to give a licence to anybody she chooses to Occupy the sittings. Mr Jardine is a parishioner and is resident in the parish, and there had been assigned to the land on which he resided a particular part of the church area also. It is a matter of some doubt whether there has been a particular seat in that area allocated to him, but whether or not, he

prefers to sit in pew No. 19 when it is otherwise unoccupied. This proceeding of his in occasionally occupying part of this pew with his wife and family was apparently resented by Mrs Peebles, and in these circumstances Mrs Peebles brings this interdict. The claim she sets out is a wide one. She asks the Court, as introductory to giving the interdict, to "find and declare that the right to use the pew or seat No. 19 in the area of the Parish Church of Tundergarth, to the extent of 7 feet 11 inches, belongs to the pursuer, and that exclusive of any right thereto on the part of the defender." She goes on to ask interdict against the defender "from occupying the said portion of 7 feet 11 inches of the said pew or seat No. 19, or any part of said portion, and that either by himself or his family or others having his authority, and from interfering with the pursuer or those having her authority in the enjoyment of the seat. She thus asserts an exclusive right to the use of this pew, not only for herself and her tenants but to prevent any parishioner occupying it in · preference to any licensee to whom she might give right. On the other hand the defender explains that neither he nor his family have occupied pew No. 19 to the exclusion of the pursuer, her tenants, or their dependants, and denies that he has ever asserted or claimed a right to do so. In spite of this declaration the pursuer insists on interdict.

Accordingly the pursuer's claim comes to this, that she not only claims to have exclusive use of this pew for herself, dependants, and tenants, but the exclusive use for any licensee to whom she was pleased to give permission.

Now the question is whether that is the extent of her right. So far as this interdict is concerned, it turns on the words "or those having her authority." Was she

entitled to a general interdict to that extent? Was she entitled to say "Here is an unoccupied pew; I have given a right to it to other people, not parishioners but outsiders and strangers, and if they choose to come to occupy it, although you are a parishioner and may be sitting in it, you are bound to turn out?" We are not dealing here with any question of the right which she might have given to Mr Sanders as an heritor in the parish, or whether or not an exclusive right might have been given to him, his tenants, and dependants. There is no interdict asked against interfering with Mr Sanders. Interdict is asked against interference with any licensee of the pursuer, whether he might be a parishioner or not, or whether he might be resident in the parish or not. I am bound to say I do not think there is any law whatever to support the assertion of a right so extensive.

The Sheriff-Substitute granted interdict as craved. The Sheriff, however, did not grant the interdict craved; he made a distinction. He finds that "the defender has asserted a right to occupy, and has occupied, the sittings, or part thereof, allocated to the pursuer in said pew No. 19." This is a mistake as to the facts, for, as I have

pointed out, the pursuer has never asserted such a right. All the pursuer contends for is a right after the pursuer and her tenants are accommodated. The Sheriff goes on to find in law that "the defender having a right to a seat elsewhere has no right to exclude the pursuer, or others having her authority, from said sittings in said pew." This turns on the fact that the defender has a seat elsewhere in the church; but that fact is not admitted. The Sheriff's view seems to be, that as you have a seat elsewhere, although it may be a very uncomfortable and inconvenient seat, and this seat may be empty, you are not entitled to go and occupy it, although any stranger may do so. That does not seem to me a very logical conclusion. Then the interlocutor went on to interdict him from occupying that seat, "so long as he has a seat elsewhere in said church"-did the Sheriff mean that if he ceased to be a parishioner and left the parish he might go back and occupy that seat? That seems to be the logical conclusion. • Further, I do not see how interdict can be granted in the terms asked. What we are asked to do is not to interdict the defender from occupying a particular pew, but from occupying 7 ft. 11 in. of a larger space. Now, who could tell whether a man sitting in that pew was occupying part of the 7 ft 11 in. or whether he was occupying part of the remainder of the seat which was not interdicted. If the petitioner had said on a particular occasion "You interfered with Mr Sanders; we will interdict you from interfering again with him," that would have been a different matter- but that is not what is asked. It is an interdict against the defender interfering with anybody in the world, whether he knew or had any reason to know that they had the authority of the pursuer or not. They might be absolute strangers. Was he to ask everyone, Have vou authority from Mrs Peebles? Was he bound to admit them all-if they said they had--under the risk of being brought up for breach of interdict and punished. Again, interdict is asked not only against the defender, but also against his wife and family. In this respect, too, the interdict is much too wide, and I think we should recal the interlocutor already pronounced and refuse interdict.

LORD M'LAREN -In this action of declarator and interdict the Sheriff-Substitute granted decree in terms of the prayer of the petition. It was conceded, however,

that in the actual circumstances of the case it was impossible for the pursuer to maintain the right to declarator and interdict in the unqualified terms in which decree was sought.

The Sheriff, coming to the consideration of the case with a conviction that the pursuer had a right which was being infringed, has endeavoured to find within the scope of the conclusions of the action a remedy of a more qualified nature than that granted by the Sheriff-Substitute. I cannot say that he has been altogether successful in this attempt. Indeed, I do not think that the counsel for the pursuer

were able to defend the terms of the interdict in the precise terms in which the Sheriff had granted it. They rather seemed to invite the Court to make a further attempt to define the complainer's rights consistently with the prayer of the petition. Now I should have been quite disposed, if possible, to endeavour to define the right of the complainer if the action had admitted of it, because I cannot help thinking that the complainer has rights in the pews which were allocated to her or to her predecessors when the church was built. But I agree with Lord Adam in thinking that it is impossible to reconcile any interdict which we should be justified in granting with the prayer of this petition. We have not the same powers of amendment in appeals from the Sheriff Court as we have in actions originating in the Court of Session. Yet even if this were a Court of Session action I should hesitate to say that an action directed only against a circumstantial infringement of a right could be granted in an application which was based on a perfectly absolute and unqualified assertion of right on the part of the complainer.

While accordingly I agree with Lord Adam that we must dismiss this application, I have come to this conclusion with some difficulty. My inclination would be to hold that the person to whom sittings have been allocated has primarily the right of the administration of these sittings, and that, failing tenants of his own, he would have the right to grant the use of these sittings, subject of course to the preferable claims of the parishioners. It is a somewhat narrow right, and not one of a nature to be used for profit, but it would be a right which the law would recognise. At the same time I agree that our only course in the present case is to dismiss the application.

The LORD PRESIDENT and LORD KINNEAR concurred.

The Court sustained the appeal and dismissed the petition, with expenses.

Counsel for the Appellant and Defender -Crabb Watt, K.C.-P. Balfour. Agent— Alex. Wylie, S.S.C.

Counsel for the Respondent and Pursuer -C. N. Johnston, K.C.-Welsh. Agents -Somerville & Watson, S.S.C.

June 17, 1903.

Wednesday, June 17.

SECOND DIVISION.

[Lord Kyllachy, Ordinary. CASTANEDA v. CLYDEBANK ENGINEERING AND SHIPBUILDING

COMPANY, LIMITED.

(Ante, December 10, 1901, 39 S. L. R. 231, and 4 F. 319; and July 28, 1902, 39 S. L.R. 855, and 4 F. (H.L.) 31.) Contract-Breach of Contract -Penalty or Liquidate Damages.

Damages

While endeavouring to suppress, and for the purpose of suppressing, the insurrection in Cuba, the Spanish Government in June 1896 contracted with A & B, a Clyde shipbuilding firm, to build four torpedo boat destroyers at a certain sum each respectively, to be delivered within certain times specified. There was a clause in the contracts providing that "the penalty for later delivery shall be at the rate of £500 per week for each vessel." Offers by two other firms to supply two of the vessels for sums which were respectively £12,000 and £7000 less than the sum in the offer of A & B, were not accepted, the time for delivery in these offers being nine and three months later than in the offer of A & B. The vessels were delivered forty-six weeks, forty-one weeks, twenty-eight weeks, and twenty weeks late respectively.

In an action for damages for late delivery brought in 1900 by the Spanish Government against A & B, held that as the sum stipulated to be paid in the event of late delivery applied to one particular term of the contract only and not to the contract as a whole, and as it was proportioned in amount according to the extent of the breach, it was prima facie pactional damages and not penalty, and that as in the circumstances it was not exorbitant or unreasonable it was not subject to modification.

Personal Objection- Waiver-Payment of Price without Reservation of Claim for Damages for Late Delivery.

Circumstances in which held that the payment of the last instalment of the price of a ship, and the acceptance of delivery by the purchaser without express reservation of a claim of damages for delay in delivery, did not imply waiver of the purchaser's right to insist on a clause in the contract providing for payment of certain liquidate damages in the event of such delay. This case is reported ante ut supra.

It was an action brought in December 1900 by the Spanish Minister of Marine, and others, being members of the Royal Naval Commission in London, and the said Commission, against the Clydebank Engineering and Shipbuilding Company, Limited (to which name the firm name of J. &

G. Thomson, Limited, had been altered in 1896), and against the liquidators of the said company. The conclusions of the action were that the defenders should be ordained to make payment to the pursuers of (1) £25,000, (2) £23,000, (3) £12,500, and (4) £15,000, or alternatively to make payment to the pursuers of £75,500.

The pursuers maintained that the first four sums concluded for were due to them by the defenders as liquidate damages in respect of the defenders' failure to deliver to the pursuers four torpedo boats named the " Audaz," the "Osado," the "Pluton," and the "Proserpina," which the defenders had undertaken to build for the Spanish Government, within the time stipulated in the contracts.

By the first of these contracts, which was dated 4th June 1896, and related to the Audaz" and the "Osado," the defenders undertook to build the first vessel in six and three-quarter months, and the second vessel in seven and three-quarter months from the date of the contract, at a price of £67,180 for each vessel. By the second contract, which was dated 24th November 1896, and related to the "Pluton" and, the Proserpina," the defenders undertook to build the first vessel in six and a-half months and the second vessel in seven and a-half months from the date of the contract, at a price of £65,650 for each vessel.

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The third article of each contract was in the following terms:-"The penalty for later delivery shall be at the rate of £500 per week for each vessel not delivered by the contractors in the contract time."

It was admitted that the vessels had not been delivered within the time specified in the contracts, the Audaz" being forty-six weeks late, the "Osado" forty-one weeks late, the Pluton" twenty weeks late, and the "Proserpina" twenty-eight weeks late.

The vessels in question were ordered by the Spanish Government while they were endeavouring to suppress the insurrection in Cuba, and for the purpose of suppressing that insurrection.

The form of conditions of tender contained the following clause:-"The time for delivery is to be considered a very essential point, and consistent with the pricethat is to say, without increasing the cost of the vessels by the quick delivery demanded as an important condition, builders are requested to state the shortest time for building the ships and delivering same ready for sea, and also stipulate clearly what penalties are they willing to pay for nonfulfilment of speed, and for every week's delay beyond the date that may be agreed upon for the delivery."

The builders' tender contained the following clause:-"The penalty for delay in delivery to be £500 for each completed week beyond the contract time.

The pursuers maintained (1) that the sums stipulated in the contracts for delay were pactional or liquidate damages, and were not subject to modification; and (2) that they had done nothing to waive their right to demand payment.

Shipbuilding

The defenders maintained (1) that the sums stipulated in the contracts for delay in delivery were penalties, and that they were subject to modification by the Court as being exorbitant and unconscionable; and (2) that the pursuers had waived their right to claim payment of them.

Proof was led in the action.

The facts with regard to the first point were summarised as follows by the Lord Ordinary (KYLLACHY):—

"I do not propose to refer in detail to the evidence, particularly the evidence with respect to the insurrection in Cuba and the apprehended intervention by the United States Government, and the connection which the pursuers allege between the situation thus induced and the making of the two contracts which have given rise to this question. All I need say is, that I see no reason to doubt the general correctness of the testimony adduced by the pursuers on that subject. It may well have been that the efforts made in the year 1896 by the Spanish Government-of which efforts the building of these four torpedo boat destroyers formed a partwere somewhat belated, and perhaps also inadequate. But I think it quite probable, and perhaps more than probable, that if the Spanish Government had even in the spring of 1897, been in a position to establish around the coast of Cuba, or even certain parts of that coast, a really effective blockade-I mean effective as against the landing of munitions of war-the Cuban insurrection might have been crushed and American intervention avoided. In such circumstances it would, as it seems to me, be very difficult to assign any limit to the value, even as estimated in money, which the Spanish Government-face to face with such an emergency, and making contracts for the addition to their navy of vessels of war of exceptional speed-may have honestly and reasonably placed on the matter of early delivery. But be that as it may, there is one test which, as it happens, can be here applied, and to which the defenders can hardly object. I refer to the additional price which the pursuers were ready to pay, and in fact did pay, for the early delivery offered by the defenders as compared with the later deliveries offered by others firms of equal position. It is a fact not in controversy that when in June 1896 the pursuers ultimately agreed to pay to the defenders for each of the first two vessels a price of £67,180, they had before them (amongst others) an offer from the Messrs Thorneycroft to supply the same vessels for £55,000 each, and from the Thames Iron Company to supply them for £60,000. It is also, I think, a fact established, inter alia, by the report (No. 352 of process) made by the Naval Commission upon the various tenders, that the only reason why the defenders' offer, so much larger in amount, was accepted, was that their time for delivery was nine months earlier than that of Messrs Thorneycroft, and three months earlier than that of the Thames Company. These figures, it appears to me, speak for themselves. They

work out so as to show in effect an additional price paid to the defenders for ‘quick delivery' of, on the one comparison of about £340 per week, and on the other of about £490 per week. It is hardly, I think, possible in such circumstances to suggest that the £500 per week (prima facie stipulated as liquidate damage) was truly a mere random sum stipulated as penalty and without reference to any reasonable preestimate of actual loss."

The facts with regard to the plea of waiver were as follows:-"The Spanish Commission in London upon more than one occasion communicated to the defenders Royal Orders which referred to the delay in delivery of the vessels and asked for explanations. In answer to these communications the defenders more than once gave explanations. The Spanish Government never expressly intimated their satisfaction with these explanations. The Com mission in London had no power to deal with the question of remitting penalties or damages incurred, which had to be referred to the Spanish Government for decision, and the defenders knew this. The vessels were ultimately delivered as follows:the 'Pluton' before the end of 1897, the 'Proserpina on 8th February 1898, the Audaz' and the Osado' on 7th March 1898. The final instalments were paid on 23rd February, 14th March and 16th March (2) 1898 respectively. On 28th January 188 the Commission wrote to the defenders intimating a decision of the Spanish Govenment with regard to accepting two of the vessels even if slightly deficient in speed. The Spanish Minister's letter concluded as follows:-The penalties incurred for the delay in delivery shall subsist as heretofore. On 3rd March 1898 the defenders wrote stating that the Audaz' and 'Osado' were now ready for delivery, but asking that the final instalments should be paid before delivery, 'leaving extras to be settled when the matter of delay in delivery is arranged.' The funds had not then arrived in London. The Spanish Commission replied that part of the money was advised, that they had wired urging remittance of the remainder, and that it would be most sensitive to the chief of the Commission 'having to acquaint my Government your decision.' On 7th March 1898 the defenders withdrew their letter of 3rd March. On 9th March 1898 the Commission wrote that instructions had been received from Madrid to pay you in full instalments due on the "Proserpina." Audaz," and "Osado." In the correspondence passing at this time there was no express reservation of claims of damages for delay in delivery. In an interview which took place on 5th March the subject was not mentioned. The receipt for the final instalment on the Pluton, dated 23rd February 1898, was as follows:£16,412, 10s.

Received from His Excellency Commodore Trigueros, Chief of the Spanish Royal Naval Commission in London, the sum of sixteen thousand four hundred and twelve pounds ten shillings sterling (by draft on