Scottish Court of Session Decisions

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Cite as: [1835] CA 13_437

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SCOTTISH_Shaw_Court_of_Session

Page: 437↓

Bruce

v.

Edin. Trustees No. 134.

Court of Session

2d Division. T

Bill-Chamber

Feb. 7 1835

Ld. Jeffrey

Archibald Bruce, Complainer.— Keay— G. G. Bell. Patrick Irvine, W. S. (for Trustees of City of Edinburgh), Respondent— D. F. Hope— Anderson.

Subject_Process—Advocation.—

Retention.—

A bill of suspension competent of a warrant granted ostensibly in exercise of the powers conferred on sheriffs by the judicature act for regulating interim possession pending advocation, but substantially for carrying into effect the judgment in a cause.

Accountant's lien over books and documents put into his possession under professional employment.

By the City of Edinburgh Trust Estates' Act, passed in August, 1833, it is inter alia provided (§ 9), “That all books, records, minutes, accounts, and papers of every description, belonging to the said city of Edinburgh, preceding the said second Monday after the next election of the Lord Provost, Magistrates, and Council of the said city, shall at all times be open to the inspection and examination of the said trustees, and of every one of them; and upon the requisition of any meeting, or of a quorum of the said trustees, every officer or person in whose custody any such books, records, minutes, accounts, and papers may be, shall be, and he is hereby required to furnish to the said trustees, at their expense, such copies of, or extracts from, the same as they shall require.”

Prior to the passing of the act, the complainer, Bruce, a professional accountant, had been employed in that character by the magistrates, and, for the execution of the business committed to him, he had been put in possession of certain books and papers belonging to the city. The trustees having demanded inspection of these, Bruce refused, un less he should be secured in a preference for the account due him for his services, amounting to upwards of £800, for which he contended he had a lien over the books, &c. in his possession. This the trustees declined, and, in the course of last summer, the complainer, Irvine, W.S., as their clerk, presented a petition to the Sheriff of Edinburgh, praying him to ordain Bruce “forthwith to give and allow to the said trustees, nominated in the foresaid statute, or any one of their number; or to Robert Christie, Esq. their accountant, or such other person as may be appointed to that office, a full and complete inspection upon all occasions, and at all reasonable times, when required, of all books, records, minutes, accounts, and papers of every description, belonging to the said city, in his custody and possession, with power to the said trustees, or any one of their number, or the said Mr Robert Christie, their accountant, or such other person as may be appointed to that office, to have such copies or extracts from the same, as they or any of them shall require, as provided in the act of Parliament; reserving to the said Archibald Bruce any right of lien or retention which he may allege to possess over the said books, records, minutes, accounts, or other papers belonging to the said city, or professional charges or disbursements made relative thereto.”

In answer, Bruce contended, that, as the whole use to the trustees of the books and documents in his possession was attained by inspection, he could not be compelled to admit of this on any conditions other than those on which their delivery might be demanded, and that the mere reservation of his right of lien was not sufficient, as he was entitled to a security equivalent to his lien, should he be found entitled thereto, before he parted with the documents.

The Sheriff (June 20) pronounced this interlocutor:—“Finds that, under the statute referred to in the petition, the defender is bound to give inspection, and to provide copies or extracts as craved in the petition; and therefore decerns and ordains him to give inspection and to provide copies accordingly, under reservation of all his rights consistent with such inspection.”

Bruce having thereupon advocated the cause, Irvine presented an application to the Sheriff for a warrant to give immediate inspection in the mean time, under the powers conferred on the Sheriff by the judicature act, of regulating interim possession pending an, advocation. The Sheriff granted the interim warrant as craved, “on the pursuers previously finding sufficient caution, acted in the Sheriff-court books of Edinburgh, that, in the event of its being finally decided that the trustees are not entitled to obtain access to and inspection of the documents in the defender's possession, as allowed by the interlocutor of this court in the original cause, the trustees will pay the defender the amount of any claims which he way be found to have upon the funds and properties vested in the said trustees; finds neither party entitled to expenses, and decerns.”

Bruce on this presented a bill of suspension, on the ground that the warrant of the Sheriff was not an exercise of the power of regulating interim possession under the judicature act, but was truly of the nature of interim execution pending the advocation, which was ultra vires of the Sheriff. To the competency of the bill, it was objected by Irvine, that the Sheriff's judgments regulating interim possession were not reviewable, except in the course of the process of advocation itself; but to this it was answered, that, if the warrant sought to be suspended were ultra vires, it could not have the protection of the act, and so was liable to suspension.

The Lord Ordinary passed the bill, and continued the sist till the question should come to be discussed on the expede letters, adding the subjoined note. ^*

_________________ Footnote _________________

^* “If this bill is competent, there can be no question that it must be pasted, what ever the judge's opinion may be of the merits of the Sheriff's decree. For if the Sheriff had power to pronounce that decree, it must be incompetent to review it in a suspension; and if he had no such power, then it must be suspended (whether right or wrong on the merits) for defect of jurisdiction, and as proceeding a non habente potestatem.

“Now, the Lord Ordinary thinks the Sheriff has no power to pronounce that decree, and, therefore, he passes the bill; but he does this very reluctantly, because he is satisfied that the judgment, qualified as it is, is not only expedient, and founded on substantial justice to the respondents, but actually secures to the suspender an advantage to which his right would otherwise be questionable.

“The Lord Ordinary has no doubt that this is a case to which the 42d section of the Judicature Act applies (though, till the Court meets, there can be no discussion in the advocation), and that the Sheriff had full power, therefore, ‘to regulate the interim possession,’ as authorized by that section. But the difficulty is, that he has not merely regulated the possession, but granted interim execution of the decree in the original action. It is impossible to look at the terms of that decree, and those of the judgment now Sought to be stayed, without seeing this; and though in one sense it may be said that this interim execution it really effected by a mere regulation of possession, still, if it be also a full execution of the original sentence, the Lord Ordinary cannot but think it incompetently issued by a judge who has no power to grant interim execution. The Supreme Court has a power (in cases of appeal to the House of Lords), both to grant such execution, and to regulate possession. But it always exercises the two powers separately and distinctly, and upon separate applications; and if such an application as that of the respondents had been made to it, he cannot doubt that what would have been asked and granted, would have been warrant for interim execution, and not a regulation of possession.”

Irvine having reclaimed, the Court (November 21) superseded the cause till the advocation should come forward. Thereafter, in the advocation, Lord Moncreiff, Ordinary, pronounced this interlocutor, which was acquiesced in by the parties:—

“Finds that the respondents and pursuers are entitled to demand inspection by themselves, or others authorized by them, of all books, records, accounts, minutes, or other papers belonging to the city of Edin burgh, prior in date to the second Monday after the election of the Lord Provost, Magistrates, and Council, in the year 1833, which may be in the possession of the defender and advocator, under reservation to him of any right of lien or hypothec competent to him in respect of his possession of such books, records, accounts, minutes, and other papers, for payment of all such accounts of business as, upon sufficient auditing, shall be found to be justly due by the said city to the said advocator, and to fall under such lien or hypothec, according to law; and of his right of preference thereby against other creditors of the city over the funds in the hands of the trustees demanding such inspection: And under this reservation ordains the advocator and original defender forthwith and at all times to give inspection accordingly, and decerns: But finds, that the defender and advocator is not bound to give or allow such inspection, except under the reservation above expressed, or a reservation of similar effect, or on caution for payment of whatever debt may be found to be covered by any right of lien or hypothec in his person; and refuses the desire of the original petition, in so far as it may be held or construed to pray for inspection otherwise than subject to such reservation: Finds no expenses due.” ^*

_________________ Footnote _________________

^* “ Note.—The Lord Ordinary cannot enter into all the views of either of the parties in this cause. On the one hand, he takes a different view of the 9th section of the act of Parliament from that which was ably pressed on him by the counsel of the respondents (pursuers). He has no idea that it could be the purpose of that clause to destroy or impair any security actually vested as between the city and an individual. And he must observe, that when it was stated to him, in the concluding argument for the trustees, that Mr Bruce was a party assisting in preparing the bill to Parliament, it had not been adverted to, that there is no such averment in the record, and that the case against him was not put on any such ground in the inferior Court. The Lord Ordinary's views of the object of the clause is very different. The statute was of a very special nature. The magistrates were still to be left in the exercise of their functions, and in the administration of certain ordinary revenues; and their books, records, minutes, &c. necessarily remained in their own hands, or those of their officers. Without the provision in the 9th section, which is directed in the first instance against the magistrates themselves, there might have been at least a doubt whether they would have been bound, or their officers would even have been warranted, without an order of the Magistrates, to grant such a broad inspection of writs as the clause contemplates. There could be no intention to distinguish between delivery and inspection, with a view to impair any lien or right of hypothec; because the clause manifestly has a peculiar reference to books, records, &c. which were to remain with the Magistrates, and supposes that there was to be no delivery of them. But the case of an actually existing security or preference, in its nature depending on the right of a third party to refuse such inspection, except on terms which would preserve it, and render it legally effectual, could not, it is thought, be at all in the contemplation of that clause, unless it was also meant to be saved by the 15th section. For it can never be presumed that the legislature intended to impair a private right, where the act expressly saves all such rights. If the simple case of an agent be looked to, this will be apparent.

“Yet it is manifest, that the 15th section would not simply by its own force preserve any preference to Mr Bruce. If he had given inspection merely on a demand for it, he could have claimed no preference afterwards. The peculiarity is, that there is here no direct security or right of preference on which a claim can be made. The means of obtaining a preference are created by the demand of access to the papers, and the importance of it to the trust; and the security consists in the right to refuse this till payment be made, or a preference reserved.

“The Lord Ordinary is further of opinion, that where there is a hypothec, especially over writs, the use of which essentially consists in inspection, the party entitled to retain, is also entitled to refuse inspection. Jan. 13, 1773.— Finlay v. Syme. Feb. 9, 1793.—Creditors of Newlands v. M'Kenzie.—Bell, ii. 113. There are cases, no doubt, in which a third party, not representing the employer, may have a right to obtain inspection of the writs—as in the case of an heir of entail, with reference to the entail titles. But such cases do not reach this. The debt to the advocator was contracted, and the writs were deposited, while the Magistrates were in the full administration of the estate of the community; and the pursuers are merely trustees for their creditors. They cannot, in the Lord Ordinary's opinion, be in a better situation than a trustee for creditors in a sequestration.

“Taking the matter on this footing, the Lord Ordinary thinks that the advocator, if he has a lien at all, is not bound to give inspection of the writs without at least a clear reservation of his debt, when ascertained, as preferable over the funds of the trust. The case of Paul v. Mathie, Feb. 2, 1826, is the clearest and most distinct authority of a late date. It only followed other cases; for the Wilsontown case, Frazer v. Mowbray, was settled on the same principle, though it went on the motion of the agent himself. In the latter case of Dobie v. Scales, May 13, 1831, the same principle was enforced, though the agent had there offered inspection of the writs, which inspection was of no value, the writs being heritable titles; and the Court took that offer into view in their interlocutor.

“It may occur that the reservation in the interlocutor is somewhat more precise than what was thought necessary in some other cases. But the reason is, that here it is avowed in the record, that the general words of reservation, conceded in the prayer of the original petition, are meant to cover a refusal to admit the advocator's claim at all as a claim against the trust, and to throw him back on the Magistrates as they now stand. The Lord Ordinary should think it very unjust to require him to part with his lien on a reservation so avowedly insufficient. If that is a serious question, it should be stated and argued now, before Mr Bruce is required to part with his security.

“On the other hand, the Lord Ordinary thinks that there are certain questions which ought to be reserved entire to the trustees. 1. If they can show that an accountant has no right of hypothec or lien on books or papers coming into his possession professionally, that should be left open, however difficult, after the case of Stewart, Feb. 23,1828. 2. If they can show that Mr Bruce had no lien in respect of his condition as a salaried officer of the city, and the footing on which the writs came into his custody, that should be left entire. 3. Every thing relating to the accuracy of the accounts should be open. The Lord Ordinary has endeavoured so to frame the reservation as to save every such question. But he cannot go farther, The single point of controversy is, shall the advocator be compelled to part with his real lien without a reservation which shall secure payment from the parties demanding the inspection, if it be found that the lien was good as a security against the city before the act of Parliament was passed? The Lord Ordinary thinks he cannot, according to the existing law.”

The Court now resumed consideration of Irvine's reclaiming note on the bill of suspension, and adhered to the interlocutor of the Lord Ordinary.

Solicitors: Patrick Irvine, W.S.— Thomas Bruce, W.S.—Agents.

SS 13 SS 437 1835