Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Edinburgh by James M'Mahon, commission agent, residing at No. 21 Guthrie Street, Edinburgh, against A. A. Mathieson, M.D., Edinburgh, in which the pursuer prayed the Court to interdict the defender, and all others acting under his instructions, from selling, removing, or interfering with the goods or effects belonging to the pursuer, and in his house at 21 Guthrie Street, under an alleged extract-decree containing warrant to poind, dated 26th October 1898, and in particular certain specified articles which had been poinded under that decree, and for interim interdict.

The material part of the summons upon which this decree and poinding followed was as follows:—“Whereas it is humbly complained to me by A. A. Mathieson, M.D., 41 George Square, that James M'Mahon, commission agent, 21 Guthrie Street, Edinburgh, trustee and sole exor. on the estate of the deceased Mrs Jane Ward, 5 College Street, Edinburgh, defender, is owing the complainer the sum of Three pounds twelve shillings, conform to statement of account hereto annexed, ending 16th July 1897, which the said defender refuses or delays to pay; and therefore the said defender ought to be decerned and ordained to make payment to the complainer, with expenses. Herefore it is my will,” &c.

The sum sued for was the amount of an account for professional services rendered to the deceased Mrs Ward,

Page: 705↓

The decree pronounced upon this summons was as follows:—“At Edinburgh, the twenty-sixth day of October One thousand eight hundred and ninety-eight years, the Sheriff of the Lothians and Peebles finds the within designed James M'Mahon as libelled, defender, liable to the pursuer in the sum of Three pounds twelve shillings, with three shillings and one penny of expenses, and decerns and ordains instant execution by arrestment, and also execution to pass hereon by poinding and sale, and imprisonment if the same be competent after a charge of ten free days.”

Upon 14th November 1898 “James M'Mahon, defender above designed,” was charged to implement this decree.

On 18th November Mr M'Mahon's law-agent wrote to Dr Mathieson's law-agent intimating receipt of this charge, and pointing out that there were no trust funds. On 22nd November he wrote again to the same effect.

On 2nd December 1898 a sheriff-officer poinded certain of the pursuer's own effects in his house at 21 Guthrie Street. The poinding bore to proceed upon the decree above mentioned dated 26th October.

Thereupon on 5th December 1898 Mr M'Mahon raised the present action.

The pursuer averred that the decree of 26th October was against him “as trustee and sole executor on the estate of the deceased Mrs Jane Ward;” that he had repeatedly intimated through his law-agent to the defender that there were no trust-funds; that the effects poinded were his private property, and that the sheriff-officer, when about to proceed with the poinding, had been told so by the pursuer's wife in the pursuer's absence, but that notwithstanding he had proceeded with the poinding, and scheduled the effects referred to supra.

The defender averred as follows:—(Ans. 2) “The decree is referred to for its terms. Explained and averred that the decree was pronounced in foro contentioso after a defence had been stated by the pursuer to the effect (1) that prior to the lodging of the claim the pursuer had paid away all the funds of the estate; and (2) that he had no funds. The Sheriff held the pursuer failed to prove both defences. In these circumstances the decree pronounced was equivalent to a personal decree—at all events, it is a decree which necessarily implies execution against the defender's property.”

The pursuer pleaded—“(1) The defender having wrongfully poinded the pursuer's goods and effects, the pursuer is entitled to obtain interdict against his selling the same. (2) The goods in question being the property of the pursuer, and he not being the debtor named in the decree condescended upon, the poinding of said goods is illegal and unwarrantable, and their sale ought to be interdicted.”

The defender pleaded, inter alia—“(2) The pursuer's averments are not relevant nor sufficient to sustain the action. (3) The small-debt decree in question having been pronounced notwithstanding that the pursuer pleaded as a defence that he had no funds, the present action being an attempt to review said decree is incompetent. (4) The pursuer being in possession of funds and property belonging to the said estate which he has secreted, the diligence complained against is competent.”

A correspondence was produced from which it appeared that on 31st September 1898 the pursuer's law-agent wrote to the defender's law-agent stating that he had made no provision for the defender's claim, but that as it was manifestly preferable he would pay it, and that as there had been a claim upon the estate by another medical man he would require a detailed account. After receiving a detailed account he raised several objections to certain items in it, and to the preferable character of part of it, and offered to pay £1, 16s. in full discharge of the defender's claim. In this letter the pursuer's law-agent stated that he had not made provision for the pursuer's claim in winding up the the estate (which was not done till nine months after the death of Mrs Ward), as he had up till then no due intimation of it. Upon receipt of this letter by his law-agent, the present defender immediately raised the small-debt action above referred to.

On 5th December the Sheriff-Substitute ( Hamilton) granted interim interdict.

On 26th January 1899 the Sheriff-Substitute issued the following interlocutor:—“Sustains the second plea-in-law for the defender: Dismisses the action, and decerns: Finds the pursuer liable in expenses, and remits,” &c.

Note.—“The Sheriff-Substitute is unable to distinguish between this case and that of Jaffray v. Gordon & Waddell, February 10, 1831, 9 S. 416, in which it was held that a small-debt decree directed against the trustee in a sequestration was sua natura a sufficient warrant for attaching his personal effects, that that was the plain meaning of the decree.

As regards the present case, the pursuer suffers no real hardship in respect of the proceedings complained of, for the debt which he is called upon to pay is of trifling amount, and he has an undoubted claim of relief against the parties who take benefit from the executry estate in question. Further, it appears from the correspondence produced that he had funds in his hands at the time the defender's claim was first intimated to him. Why did he part with these funds without retaining enough to meet this claim?”

The pursuer appealed to the Sheriff ( Rutherfurd), who on 3rd March 1899 recalled the interim interdict, adhered to the Sheriff-Substitute's interlocutor of 26th January 1899, dismissed the appeal, and remitted the case to the Sheriff-Substitute, finding the pursuer liable in additional expenses.

Note.—“From the note appended to his interlocutor it is obvious that the Sheriff-Substitute intended the decree which he pronounced in the small-debt action referred to on record to be a decree against the present pursuer personally, and, holding that to be its plain meaning, he has

Page: 706↓

dismissed the present, action as irrelevant. The Sheriff sees no reason to differ from the Sheriff-Substitute.”

The pursuer appealed, and argued—The pursuer in the present action was only liable as trustee and not as an individual. The decision of this question depended upon the interpretation to be put upon the summons and the decree in the small-debt action. The account annexed to the summons, which was incorporated in the summons itself by reference, showed that the claim was and could only be (apart from special circumstances, of which there was no indication) against the present pursuer “as trustee.” The decree was against “the within-designed James M'Mahon as libelled,” which was equivalent to against “James M'Mahon, commission agent, 21 Guthrie Street, Edinburgh, as trustee and sole executor on the estate of the deceased Mrs Jane Ward.” “As libelled” could not refer to the amount decerned for, as that was stated at length immediately afterwards in the decree. A particular person as executor was a different legal persona from the same person as an individual. Here the present pursuer had not been sued in the small-debt court as an individual at all. The small-debt summons and decree were therefore directed against the present pursuer in his representative capacity merely, and he could not be held personally liable under them— Craig v. Hogg, October 17, 1896, 24 R. 6; Wilson v. Mackie, October 22, 1875, 3 R. 18. In the latter of these two cases the instance, as appeared from an examination of the session papers, was against “William Wilson, executor,” and so forth, and not agains “William Wilson, as executor.” The omission of the word “as” was therefore immaterial. Where a person was sued for a debt which was primarily due by an estate on which lie was executor, he was prima facie not liable as an individual. He could not be held liable as an individual unless he had done something wrong or negligent. It was for the pursuer to show that the executor was personally liable, and that personal liability was intended under the decree founded on. The argument based upon the terms of the Small Debt Act and the forms in the Schedule thereto was unfounded. It was certainly quite unprecedented. There was no reason for excluding actions against persons in a representative capacity from the scope of the Act, and the words “all civil causes” and “debt or demand” were wide enough to include such actions. If, however, such actions were incompetent in the Small Debt Court, then this action being of that character was incompetent and could not support diligence against anyone. The case of Jaffray v. Gordon, February 10, 1831, 9 S. 416, was special. It was held there that personal liability must have been intended, because otherwise there would have been no object in bringing an action, and a claim made in the sequestration would have been sufficient. The present case was ruled by Wilson v. Mackie, cit.

Argued for the defender—(1) No decree except a personal decree was competent in the Small Debt Court, and a defender could not therefore be decerned against in that court in a representative capacity merely. A summons brought for the purpose of constituting a debt against a deceased's estate was not competent in the Small Debt Court—See Small Debt Act 1837 (1 Vict. c. 41), Preamble and Schedule A, Nos. 1 and 7. The forms were imperative. If an action was brought in the Small Debt Court against a trustee or executor the Sheriff could only either dismiss the action, or find the defender personally liable upon some ground inferring personal liability against him, and it was to be presumed, if the Sheriff had found a defender liable under such circumstances, that he had found him liable personally. This was the ground of decision in Jaffray v. Gordon, cit., a case which ruled the present. The presumption applied here, and in fact that was what took place. Apart from this, however, the defender here was not sued “as” trustee and sole executor. The omission of the word “as” was conclusive against him. The words “trustee and sole executor,” and so forth, were merely part of his designation, and did not limit the effect of the decree— Henderson's Trustees and Others, May 20, 1831, 9 S. 618, per Lord Newton, Ordinary, at p. 021; Graham v. Macfarlane & Company, March 11, 1869, 7 Macph. 640. In Craig v. Hogg, cit., the summons and decree were against the defender “as judicial factor,” and that case was accordingly distinguished from the present. To escape personal liability it must be made quite clear that the decree against the person sued is only given against him in his representative capacity. That was not so here.

At advising—