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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sturrock v. Welsh & Forbes [1890] ScotLR 28_108 (18 November 1890) URL: http://www.bailii.org/scot/cases/ScotCS/1890/28SLR0108.html Cite as: [1890] SLR 28_108, [1890] ScotLR 28_108 |
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A party who had been charged to make payment of the sums contained in a decree for expenses obtained against him in an action of maills and duties, brought an action of damages against the chargers, averring that before they moved for said decree against him they had entered into an agreement under which, in consideration of certain trust-deeds granted by him for behoof of his creditors, they discharged all “personal claims” against him, and, inter alia, the claim for expenses in the action of maills and duties. The defenders founded upon the fact, that although they had given the pursuer due notice of their intention to move for said decree, he had not appeared to oppose their application, and pleaded that the action was irrelevant. It appeared
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from certain correspondence produced in the case that the pursuer had acted on the view, that in consequence of the agreement libelled he had no interest entitling him to oppose the decree being granted, as it could only be the foundation of a claim for a ranking on his estate. Held that the view upon which the pursuer had acted was reasonable in the circumstances, and that he was entitled to an issue on the question whether the charge executed by the defenders was wrongful and in breach of their agreement with him.
John Sturrock was the proprietor of certain heritable properties in Edinburgh and Leith, and over certain of these properties the North British Investment Company held a bond and disposition in security for £1500. Sturrock having failed to pay regularly the interest due on this bond, the investment company in November 1886 raised an action of maills and duties in the Sheriff Court of the Lothians against him and the the tenants of the properties conveyed in security under the bond, and on 3d February 1887 the Sheriff-Substitute decerned against the pursuer, and found him liable in expenses. Sturrock thereupon appealed to the Sheriff. In these proceedings against Sturrock Messrs Welsh & Forbes, S.S.C., who themselves were heritable creditors of Sturrock, acted for the investment company, and during the course of the proceedings negotiations were being carried on between Sturrock and Welsh & Forbes, in which the latter acted both for themselves and for the investment company.
Pending the result of these negotiations, the hearing of the appeal was delayed on the application of Sturrock's agents, with consent of Welsh & Forbes. The negotiations resulted in Sturrock granting two trust-deeds for behoof of his creditors. In one of these deeds he conveyed certain of his properties to Richard Brown, C.A., for behoof of the creditors holding securities thereover, and in the other he conveyed certain other of his properties to A. Davidson Smith, C.A., for behoof of the creditors holding securities over them. Thereafter on 14th April 1887 Welsh & Forbes wrote to Sturrock as follows:—“We hereby undertake, with reference to the trust conveyances executed by you to-day in favour of Mr Richard Brown and Mr Davidson Smith—1. That they shall not be binding upon you until they are formally acceded to by Messrs Burness, the British Linen Company Bank, the North British Property Investment Company, and ourselves. 2. That when the deeds are so acceded to we shall deliver to you discharges by the North British Property Investment Company and us, of their and our securities over—(1) your dwelling-house at Wardie; (2) the portion of the Marjoribanks superiority sold by you to Mr Byers; (3) discharge of the poinding and of the charge of payment upon our bond; and (4) discharge of arrestments in the action at our instance. Upon exchange of these documents all personal claims against you at the instance of the investment company or ourselves shall be held as discharged, and all claims at your instance against said company or against us shall be held as discharged. The balance due to the investment company and to us has been left blank in the schedules attached to the trust-deeds in the meantime.”
On 29th November 1887 Welsh & Forbes intimated to Sturrock by letter that the action of maills and duties had been put to the roll, and that in the event of no appearance being made for the defender they would move to have the appeal dismissed and the interlocutor of the Sheriff-Substitute affirmed. On 7th December the Sheriff, on their motion, dismissed the appeal with additional expenses. The pursuer's account of expenses was taxed, notice of the diet fixed by the Auditor having been duly sent to the defender, and thereafter Welsh & Forbes intimated to Sturrock their intention to move for approval of the Auditor's report, and for decree in name of the agent-disburser, and on 16th December 1887 the Sheriff granted decree against Sturrock in terms of said motion. In none of these proceedings was any appearance made for Sturrock.
On 27th October 1888 Welsh & Forbes served upon Sturrock a charge upon said decree for expenses. Sturrock then brought a suspension of the charge in the Court of Session, and, after certain procedure, the Lord Ordinary ( Wellwood) on 12th June 1889 suspended the charge with expenses, on the ground that the claim for expenses in the action of maills and duties was “a personal claim” within the meaning of the agreement of 14th April, and was thereby discharged. That judgment became final.
On 14th May 1890 Sturrock raised the present action against Welsh & Forbes for payment of £500 as damages, on the ground that the charge executed upon the decree pronounced in the action of maills and duties was wrongous and illegal.
The pursuer founded upon Welsh & Forbes' letter of 14th April, above quoted, and averred—“The said letter expressed the terms of the arrangement upon which the pursuer consented to grant the deeds in question, and, inter alia, that all personal claims hinc inde between the pursuer and the investment company and the defenders should be discharged. The conditions mentioned in said letter were all thereafter purified, and on 7th November 1887 the deeds, &c., in question were finally delivered, and the trust-deeds became operative. The foresaid agreement to discharge all personal claims against the pursuer then became absolute… . The defenders were duly warned that the pursuer relied upon the letter of 14th April 1887 as discharging their claim for said expenses ( i.e., in the action of maills and duties), and that any proceedings in respect of same would be at their own risk. A copy of the correspondence passing between the parties is produced and referred to. No claim was made on the pursuer by the defenders in respect of said decree, and no intimation was made that he was liable for
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payment of the sum therein contained until on or about 27th October 1888, when the pursuer was, without any preliminary warning, most illegally and unjustly served with a charge upon said decree.” The pursuer pleaded—“(1) The said charge being wrongous and illegal, the pursuer is entitled to damages as concluded for.”
The defenders pleaded—“(1) The pursuer's averments are neither relevant nor sufficient to support the conclusions of the summons.”
It appeared from certain correspondence produced in the case that when the pursuer received the intimation that the action of maills and duties had been enrolled in order to have the appeal dismissed, he enclosed it to Mr Brown, the trustee under one of the trust-deeds granted by him, as the party interested therein, and thereafter on 9th December the pursuer wrote to Mr Forbes, of Welsh & Forbes, in these terms—“I duly received your firm's notice of enrolment in this case, which I forwarded to Mr Richard Brown, the trustee. He returned it, but I did not get the notice back until after the case had been disposed of. I have also received your letter of this date, and relative account, which I am at a loss to understand. All personal claims at the instance of the investment company and your firm were held as discharged, and that was one of the conditions of granting the deed. I shall be glad, therefore, if you will let me know, at your earliest possible convenience, what is the meaning of your letter, and what position you take up in the matter.” To this letter it appeared that no reply was sent.
The Lord Ordinary ( Kinnear) allowed the pursuer an issue in these terms—“Whether the defenders, having on or about 16th December 1887 obtained a decree against the pursuer for the sum of £28, 10s. 7d., on or about 27th October 1888 wrongfully charged the pursuer to make payment of the sums contained in said decree, to his loss, injury, and damage? Damages laid at £500.”
The defenders reclaimed, and argued—The issue should be disallowed, and the action dismissed as irrelevant. Where a decree was competently obtained against a defender, after due notice to him that it would be moved for, such defender could not bring an action of damages on the ground that he had been illegally charged on said decree. It was the duty of the pursuer in this case to have appeared in the Sheriff Court, produced the discharge on which he relied, and opposed the motion that decree should be granted against him. He was responsible for the consequences of not having done so— Aitken v. Finlay, February 25, 1837, 15 S. 683; Bell v. Gunn, June 21, 1859, 21 D. 1008; Ormiston v. Redpath, Brown, & Company, February 24, 1866, 4 Macph. 488.
Argued for the pursuer and respondent—The pursuer having surrendered his estate to his creditors, could not object to decree being granted in the action of maills and duties, as such decree was a good decree of constitution against his estate. The intimation sent to him did not indicate that decree was to be taken against him personally. There was therefore no reason why he should attend the Sheriff Court in order to oppose the granting of the decree. The defenders had no right to put the decree in force against him personally. The pursuer was therefore entitled to the issue allowed by the Lord Ordinary— Gibbs v. Edinburgh Brewery Company, June 19, 1873, 11 Macph. 705; Henderson v. Rollo, &c., November 18, 1871, 10 Macph. 104; Smith v. Taylor, December 8, 1882, 10 R. 291.
At advising—
Under the issue as so adjusted there will arise at the trial a question of law as well as a question of fact. The question of law of course relates to the construction of the alleged agreement, and that is a matter upon which at present I express no opinion, and I suppose none of your Lordships intend to either. It will be for the presiding Judge to direct the jury in that respect. The question of fact raised upon the issue as so adjusted will turn mainly, I should think, upon whether the pursuer has in any way debarred himself from making his claim now, in consequence of his not appearing in the Sheriff Court to oppose the decree being pronounced against him in the terms of which he had notice.
Now, upon a review of the correspondence, which is in print, between the defenders and the agents for the pursuer and the pursuer himself, I think the position taken by the pursuer was a perfectly reasonable one in the circumstances. The pursuer came to the conclusion that he could not very well oppose a decree going out against him in the action of maills and duties, because the action of maills and duties, as is usual in such cases, concluded against him as debtor for payment of the expenses of the process. The position the pursuer seems to have taken was this—that as he was very much in the same position as a sequestrated bankrupt, having surrendered all his estate to his creditors, and put himself under trust, a decree taken out against him after the occurrence of that surrender in bankruptcy could be
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The defenders themselves also seem to have taken the same view of the subject originally, because, after they obtained this decree, they did not proceed to put it into execution as a decree against the pursuer personally. They delayed proceedings for about a year before taking any action under this decree. And at last when they did take action upon it the matter was raised—and I think quite competently raised—in a process of suspension before Lord Wellwood, in which the pursuer maintained that this decree could not be enforced against him personally, and that pleawas sustained by the Lord Ordinary by an interlocutor which has now become final. His Lordship proceeded upon a construction of the agreement as is set forth in the note appended to his interlocutor. But whatever was the view of the Lord Ordinary upon that agreement—whether it turns out in the end to be sound or not—it at least put him in the position consistently with his own opinion of the law and the circumstances of the case, of granting relief to the pursuer from anything in the nature of personal diligence upon this decree.
Now, that being so, it appears to me that the pursuer has a perfectly relevant case. What may become of it in the end is another affair, because that will depend upon what is the construction ultimately adopted of the agreement in question. But his case as stated upon record appears to me to be entirely relevant. He says that this decree and the charge given upon it were in breach of that agreement. If he can satisfy the jury upon that question he will be entitled to a verdict.
I think, upon the authority of the case of Aitken v. Finlay, and the other cases that were quoted to us, that where a person has obtained a decree from a competent Court, and puts that decree into force by diligence and execution, he is not liable for damages thence arising, although it may afterwards turn out that there are grounds, or reasons, or objections, which might have been urged against the decree being granted at all. I think a person having a good ground of objection to a decree going out against him is bound to appear at the proper time and place and state that ground, and if he fails to do so the party putting the decree in force is not responsible. If I thought that this was a case of the kind to which these principles applied, I should be in favour of refusing the issue. But I do not think that is really the nature of this case.
The question which arises here is, whether the objections which are now stated to the enforcing of this decree are objections which the pursuer ought to have appeared and stated in the Sheriff Court before decree was granted? If he ought to have appeared and stated them, then perhaps an issue ought to be refused, That he might have appeared and stated them is one thing; that he ought to have appeared and stated them is another thing. If he had appeared and stated them his objection would have been that in accordance with an arrangement between him and his creditors the defenders in this action had discharged or agreed to discharge all personal claims against him, and that this was one of them, and that therefore decree should not go out against him. But he might probably have been met with the answer that though that was so, the defenders were entitled to have this claim constituted in order that they might rank upon it on his estate; and that being so, I have great difficulty in seeing why this decree should not have been granted in the terms in which it has been granted. I do not know whether such a form prevails in the Sheriff Court or not, but the Sheriff might, if he wished to be very careful, have granted the decree cognitionis causa tantum. But I hardly think that the pursuer ought necessarily to have gone forward and obtained this. I think that after what had passed he was entitled to think that that decree would be treated as a decree of constitution, and I am not at all clear, the pursuer having made over all his estate
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In these circumstances I am of opinion that the pursuer is not to blame for not having gone forward and objected to decree being granted in the terms in which it was granted. The ground accordingly upon which I think that this issue ought to be granted is that the objections now stated are truly objections to the decree being put in force, and not objections which ought to have been stated before the Sheriff.
The Court approved of an issue in these terms—“Whether the defenders having, on or about 16th December 1887 obtained a decree against the pursuer for the sum of £28, 10s. 7d., on or about 27th October 1888 wrongfully, and in breach of the agreement contained in the letter printed in the schedule hereunto annexed, charged the pursuer to make payment of the sums contained in said decree, to his loss, injury, and damage?”
[The letter written on 14th April by Welsh & Forbes to Sturrock was printed in the schedule.]
Counsel for the Pursuer— H. Johnston— Salvesen. Agents— Sturrock & Graham, W.S.
Counsel for the Defenders— Sol.-Gen. Pearson— Craigie. Agents— Welsh & Forbes, S.S.C.